Dzhokhar Tsarnaev Did Not Get a Fair Trial, and Here’s Why

The verdict is in: Dzhokhar Tsarnaev will die by lethal injection. At twenty-one, he will become the youngest person on death row, sentenced in a state without the death penalty. Even among those directly affected by the Boston Marathon Bombing, there isn’t so much a sense of victory as one of unease. In a city where only twelve percent of the population favored the death penalty for him, people have begun to ask themselves: is this really the kind of justice we want to stand for?

Dzhokhar, depicted here as Satan, with his defense team as the penalty verdict was read. I can only assure you from first-hand observations that this is not what he looks like.

Part One: What I Saw

When it comes to where someone stands on this issue, I admit to being so far away from even the regular spectrum of opinion I am practically in the weeds. As I wrote about in a previous post, I have followed Dzhokhar’s case since the day he was identified as a suspect. I tried to return a presumption of innocence to him as I pieced together the evidence and testimony revealed at trial. Finally, frustrated with relying on second-hand courtroom accounts from the media, I started to appear at the courthouse so I could see everything for myself. In addition to an afternoon session during the government’s argument of aggravating factors during the penalty phase, I sat in on the entirety of the defense’s subsequent case, start to finish. I was primarily in the courtroom, but I spent a little time in the public overflow room as well. Both were, needless to say, extremely eye-opening experiences. And there was something that became clear to me very early on, sitting on the hard wooden bench, the revelation hitting me like a jolt:

None of this is fair.

At this point, with a few days to get used to the idea, I don’t know why I was ever shocked the jury came to the verdict they did. The odds were stacked against Dzhokhar from the start and nothing the defense could do could turn the tide in his favor. My father even warned me, “The way things are going, don’t be surprised if they give him the death sentence.” He practiced criminal defense for many years, and over the course of our discussions of this case, he’s ticked off grounds after grounds for appeal. Still, I tried to hold out hope, despite the uneasy feeling that has pervaded since the start of the trial. I thought the mitigating factors were strong, and the jury, although I feared their bias, would have to be swayed by the very same things that swayed me while inside the very same courtroom. There would be years of appeals regardless of the decision, my father assured me, so egregious were the legal errors present in the case.

Of course, while my father is an attorney and focuses on the legality of the issue, at heart I am an artist, so I looked for the humanity. While I was there, I studied Dzhokhar like my own life depended on it, trying to commit everything to memory, knowing I was unlikely to ever set eyes on him again. As the trial roared around us, I paid as much attention to him as I did to the proceedings, to get a sense of the life that was at stake.

What exactly can I say about him? I have a collection of small details, some that may be significant and others not so much. I saw a kid who looked like he belonged in one of my college classes, not at the defense table in one of the biggest terrorism trials in American history. His nose is larger than pictures would have you believe. I noticed signs of nerve damage in his jaw, remnants of a bullet that probably would have killed him had it hit an inch or so higher, causing one side of his mouth to droop so that at rest his face has the look of a perpetual scowl. (Given that this was the side of him facing the jury, I can only imagine what that might have done to endear him to them.) His hair is a little longer than in the photos before his capture, and curled against his collar in a way that must have irritated his neck, because he was often brushing it aside. In the mornings, he would pour his attorney Judy Clarke coffee before he poured it for himself. I don’t know what they talked about, but he seemed to be able to make Judy Clarke and Miriam Conrad genuinely smile and laugh. I saw him sniffle and wipe his eyes and nose when his elderly aunt, here from Dagestan to testify on his behalf, broke down on the stand and sobbed for so long she had to be excused. I saw him blow a reassuring kiss to a weepy cousin, beam at another aunt with such shining adoration it made me ache. And once, for a split second, he and I looked at each other. I don’t know what made him do it, because he never looked at the gallery in my presence before or since. But that particular day, as the federal marshals were bringing him out, he scanned the crowd, and our eyes met.

I wish I could say something significant happened. By certain accounts, you’d think I would have seen his irises glow a demonic red. But no, they stayed dark and opaque, and he didn’t linger because there was nothing separating me from a sea of other strangers there to rubberneck at his condemnation. I don’t know if he was looking for someone specific, but if he was, he didn’t seem to find them. Really, the only thing I can take away from this moment is that now I have looked into the eyes of someone sentenced to die for his crimes. I did not see evil, madness or malice, but I didn’t see much of anything else, either. Then again, when you are in the eye of a shitstorm so massive as this, I can only imagine you have to shut down emotionally cope with the everyday moments. It’s all you can do to weather it with some semblance of grace: sit there in silent obedience as every square inch of your life is magnified and put on display, express your gratitude to the people fighting to save you from death by pouring them coffee, and try not to let the vultures see you cry.

Dzhokhar as a child in Russia, doing his homework. This picture and many others were used by the defense to show him as a studious and obedient kid.

Part Two: The Evidence

I know the worth of a person can’t be measured entirely in details. Human life is much more complex than that. This is what the defense tried to get across to the jury during the penalty phase. This is also what convinced me that something was so fundamentally wrong in the handling of the case that we were getting nothing close to the true story.

As the defense called witness after witness to testify about Tamerlan versus Dzhokhar, a clear pattern emerged. Tamerlan was always hot-headed and arrogant, strong, powerful and bigger than his younger brother, who was born premature and had a prevailing smallness to his stature growing up. Tamerlan had a short temper and a pushy nature, and sometime around 2009 onward, he had developed an unmoderated obsession with Islam, fueled by the Internet and a friend who was a recent convert himself. Tamerlan tried to push Islam on everyone he met, including casual acquaintances and his own mother-in-law, who testified that he was difficult to get along with and she was constantly resisting being drawn into religious and political discussions with him. He was emotionally and physically abusive toward his girlfriend, Katherine Russell, who then became his wife. She converted to Islam to please him, began covering herself and acting like a very traditional Muslim wife, even though several family members testified that this was never the way they were taught to practice their religion.

The family members testified that they were afraid of the change in Tamerlan and his mother Zubeidat when they came to visit, because it was so out of character for them, and reminded them of the Islamic radicals still rampant in the region. One cousin was so alarmed she didn’t want her son meeting Tamerlan when he was there. And, as revealed by FBI 302s when Tamerlan visited Dagestan in January to July 2012, a cousin said he was loud and open about wanting to “go into the forest,” the euphemism for joining the rebels in the mountainous woods outside the city. The cousin cautioned him, “The way you’re going, you won’t make it past the next tree.” It took awhile and the assistance of other family members, but finally Tamerlan said, “You have convinced my head, but my heart still wants to do something.” In an audio file found on his computer, he and three other unidentified males discussed Islam and the establishment of a Caliphate. Tamerlan admitted to feeling “this rage of hatred inside of me.”

Tamerlan’s computer proved to be a hotbed of other radical materials, too. In files encrypted by a program suggested by jihadist propaganda Inspire Magazine, he had a cache of jihadi motivational videos, selfies of himself in Islamic garb and a gun, pictures of himself and his toddler daughter with guns, photos saved from the internet of little babies in hijab and, by far the most disturbing to me, a large number of pictures of dead civilians from war-torn regions. His own desktop background on his laptop was a tiled picture of a slaughtered woman and children, accompanied by a stickie note of Koran quotes.

Tamerlan’s aspirations seem pretty clear.

Dzhokhar, in stark contrast, was only ever described as sweet, smart, hardworking, eager to please. From elementary school all the way through high school teachers took the stand to sing his praises, greeting him at the defense table with sad, fond smiles. They called him an exceptional student, a joy to have in the class, eager to participate, easy to get along with, never fell in with a clique or fought with anyone. Friends from high school and college were called in and said much the same. They described him as supportive, loyal, funny, goofy. He never discussed religion or politics, never tried to push his point of view on anyone. At the end of each testimony, the defense asked these character witnesses, “What was your reaction when you learned Dzhokhar was involved in the Boston Marathon Bombing?”

The prosecution, invariably, jumped up. “Objection.” The judge sustained, but the answer was obvious: I never thought it could be him, not in a million years.

The defense figured out a workaround, however. They began asking the question worded slightly differently: “Was the Dzhokhar you knew consistent with the Dzhokhar who committed the bombing?” The prosecution would object, but the judge would allow it. And again, the answer was always an emphatic “no.” So firm where these answers, I got the distinct sense that not only did these witnesses believe it at the time, but still they still believed it now, even with Dzhokhar ten feet away from them seated at counsel table, thirty convictions deep.

Alexa Gueverra, a high school and college friend, described the last time she had seen Dzhokhar, about a month before the bombing. She talked about a night of driving around Cambridge, getting food “because the boys were starving,” and setting off fireworks at the Charles River. She talked about Dzhokhar jumping through the sparks and how silly it was. She started to cry openly on the stand, and when Miriam Conrad asked about her reaction to finding out about Dzhokhar’s involvement in the bombing, the question was quickly objected to and sustained. Conrad took a moment to confer with Judy Clarke, returned to the podium, and asked gently, “Why are you crying?”

The prosecution attorney leapt to his feet. “Objection.” This time, for whatever reason, the judge overruled.

There was a long, pained silence. Then Alexa said, her voice as high as a wail, “I really miss the person I used to know.”

Court recessed for the day, and Alexa rushed from the stand, down the aisle and past where I was sitting. Her sobs echoed in the hall as the door slammed shut. And I walked as calmly as I could to the bathroom, where I locked myself in a stall and cried in the face of a stark truth I could feel in the air but no one dared name. It was only the first week of the defense, but I knew. No one saw this coming from Dzhokhar because there was absolutely no way he’d been willingly involved in the crimes he had committed. There was simply no evidence, and there would be no evidence, because it wasn’t true.

Everyone who knew him described Dzhokhar as generous and kind, but the government claimed he fostered a darker nature due to the lure of radical Islam.

Part Three: The Radicalization of Dzhokhar Tsarnaev… or Lack Thereof

It’s time to back up, before the penalty phase, back to the guilt phase, when the defense should have been allowed to bring much of this evidence but was blocked. The first day of testimony, Judge George O’Toole ruled that the defense could not mention Tamerlan and should focus on what the defendant did only. Although I wasn’t there for this portion of the trial, reports said this threw the defense for a visible loop. The few times they did try to bring up Tamerlan, they were vigorously objected to by the prosecution and firmly sustained by the judge.

This, I believe, was the nail in the coffin of a defense that was already sputtering and dying due to its denial of a venue change. Because, as the evidence presented in the penalty phase shows, there is no case without Tamerlan. Not only that, but even though the defense was barred from mentioning Tamerlan, the prosecution was then allowed to use him indiscriminately to convict Dzhokhar. The bombs were built by Tamerlan (no fingerprint evidence on the bombs or the materials to make them matched anyone but him), Sean Collier was killed by Tamerlan (fingerprints on the gun magazine matched Tamerlan and was always in his possession for the rest of the night), Dun Meng was carjacked by Tamerlan, the shootout with Watertown police was initiated by Tamerlan. Dzhokhar was convicted for all of these crimes due to the nature of the charges against him – conspiracy and aiding and abetting. These charges basically mean that he did not need to know the full extent of the crimes, but that he aided to help them happen with substantial involvement and planning. But I never saw anything to indicate that he was involved substantially with the planning of the plot at all. Yes, he obtained a gun around February 2013 from a friend and it somehow ended up with Tamerlan by March. But there’s nothing to explain how the gun changed hands or why. Did he get the gun to impress his brother and Tamerlan took it from him? Did he borrow it just to have it and Tamerlan found it? Did he get it to protect himself from Tamerlan? Furthermore, the only other indication that he helped further the bombing plot was the T-Mobile burner phone opened in a variation of his name “Jahar Tsarni” the day before. However, there was no surveillance footage or witness to confirm Dzhokhar was the one to open the account, and the exhibit shows the only information entered were his name and birthdate, both pieces of information Tamerlan undoubtedly knew as his brother. Also, Tamerlan’s account was opened about nine months earlier, and there was a refill made on both Tamerlan and Dzhokhar’s disposable phones that day. This suggests that Tamerlan might have been the one to make this purchase as well, perhaps while he was out alone shopping for backpacks.

My point is that if the prosecution also removed Tamerlan from the equation, they wouldn’t have much of a case either. We would have a kid with a backpack at the Marathon but no idea how he got it or what might be inside. As for the actual crimes he committed during the escape attempt, there would be the eight hundred dollars he stole from Dun Meng, and the assault on the police officers in Watertown during a shootout not of his own making, none of which, my father has pointed out, are capital crimes. Interestingly, however, in order to counter the defense’s claim that Dzhokhar acted under the influence and direction of Tamerlan, they did assert that Tamerlan did not facilitate Dzhokhar’s radicalization, that Dzhokhar took it upon himself to “self-radicalize” and embrace the deadly ideals of radical Islam.

This is one area of the trial that I felt was underexplored, which is a shame because it involves the main motive for the crimes. The psychology of radicalization is a fascinating but still developing field. Regardless, I would have loved to see some expert witnesses discussing the radicalization trajectories present in the two brothers – or, what I believe to be more accurate, how radicalization was present in Tamerlan but absent in Dzhokhar. And if the defense could have proven that Dzhokhar was not truly radicalized, that would have broken down the government’s case entirely.

Okay, time to get a little academic and define “radicalization.” I’ve started to throw around a word that gets a lot of play in discussions of terrorism but is rarely clearly defined or used correctly. According to Doctors Clark McCauley and Sophia Moskalenko in their book Friction: How Radicalization Happens to Them and Us, “Radicalization is the development of beliefs, feelings, and actions in support of any group or cause in conflict… Radicalization is not something that happens only to others – the mentally ill person or the evil character. It is a psychological trajectory that, given the right circumstances, can happen to any person, group or nation. The trajectory is not right or wrong: it is amoral in the sense that radicalization can occur for causes both good and bad”(4). That is an important nuance to note: radicalization does not only happen to terrorists. It can – and does – happen to all of us, for all sorts of reasons and on all sides of conflicts. Terrorists might be radicalized against America, but America, for its part, has become just as radicalized against the perceived threat of terrorism. McCauley and Moskalenko note, “This transition took place in the United States after the terrorist attacks of 9/11. Americans embraced the unthinkable in search of retribution and security. We were radicalized: our feelings, beliefs and behaviors all moved toward increased support for violence against perceived enemies, including sometimes Arab and Muslim Americans. We idealized American values, gave increased power to American leaders, and became more ready to punish anyone seen as challenging patriotic norms”(4).

With this in mind, let’s turn back to the government’s claim that Dzhokhar “self-radicalized.” First, I would like to point out that McCauley and Moskalenko never identify this as an actual phenomenon. I believe this is just another buzzword created by the media who don’t know what they’re talking about. Because as explained in the previous paragraph, radicalization does not happen in a void. There are always factors that push someone along this trajectory, regardless of whether they are real or imagined. Identified in the book as “mechanisms” to radicalization, there are six of them that happen on an individual level, and they can happen in any order and in any frequency. I’ll get into these in a bit, but for now, back to the prosecution’s case.

So not only did the government assert that Dzhokhar needed no push to radicalization, going against the main definition of the psychology involved, but their only proof of this came in very questionable form. They showed that he did have jihadi propaganda materials present on his laptop, but the defense later indicated they were dumped there by Tamerlan. I myself wondered how much of it Dzhokhar actually read – PDFs, to my knowledge, have no way to record how many times they are opened and perused. And, given the amount of utter trash pervading my own hard drive, I wondered how anyone could prove he didn’t just thank Tamerlan for the reading material and promptly forget about it. This also happened with the few Islamic nasheeds found on Dzhokhar’s computer (falsely identified by the prosecution as “terrorist songs,” but that’s a can of worms for another day), where the assertion became that simply listening to these chants, which on their own are pretty much the equivalent of gospel hymns, Dzhokhar became ready and willing to commit violence in the name of Islam.

There is something inherently flawed in claiming that reading material and music is enough to make a person commit a crime. It’s oddly reminiscent of the scare about goth music and video games after the Columbine shootings, but these days, since the perceived threat is terrorism, the otherwise innocuous items become anything vaguely Muslim. This is complicated by the fact that there is a violent, dangerous movement that has hijacked supposed Muslim values to twist to their own ends. Through unfamiliarity and fear, however, it makes the untrained eye unable to distinguish between something that any Muslim in the world might know or say and what a jihadist might know or say. In this case, the government took the former and tried to turn it into the latter. For instance, take a look at some of Dzhokhar’s tweets that the prosecution entered into evidence:

I was baffled by the admission of many of the tweets, but in particular these, because to me they seem to be actively working against the prosecution’s case. I’m not a huge expert on Islam, but I have studied it in school and independently in addition to knowing a number of Muslims myself, so I think I can at least identify standard patterns in the religion. Salat are the daily prayers that any Muslim would know, and the second tweet refers to fasting during Ramadan, the most important month of the Islamic calendar. Participating in Ramadan certainly doesn’t make you a radical. And the final one not only states that Dzhokhar does not support the supposed link between Islam and terrorism – and jihadist rhetoric argues that it is a “true” Muslim’s duty to commit violence for the religion – but the timestamp indicates he says so a mere four months before the bombing. While I once, perhaps like many others, viewed this statement as some eerie sort of self-fulfilling prophecy, with the trial at an end and the prosecution unable to dig up much more than what I’ve laid in front of you, I’ve begun to reconsider. Tamerlan’s radicalization path started around 2009 – a full four years before the bombing. Meanwhile, the prosecution suggested Dzhokhar was involved with the purchasing of the bomb materials (despite cell data putting him nowhere near the scene) as early as January 31, 2013. That’s only two weeks to independently change his mind, which makes no sense without some monumental incentive, and the prosecution certainly wasn’t able to produce any.

The government did offer one explanation, however. Inspire Magazine apparently warns would-be jihadists to try to blend with regular Western society, to try not to stand out and tip off anyone about the secret plots they’re hatching. This, the prosecution claimed, was what Dzhokhar did: hid his long-term radicalization and violent ideals so well for years that absolutely no one in his life ever had any indication about his dual Muslim extremist identity. To this, I can only offer a tired laugh, because it’s so convenient, isn’t it? If there’s no evidence to prove any of these claims, it’s only because Dzhokhar was just that good at hiding them. This theory doesn’t seem to hold much weight with those who knew him either, for the record. Dzhokhar’s high school math teacher, Eric Traub, took the stand and lauded the qualities of the young man I had come to expect – friendly, diligent, skilled in math, often made it a contest to see who could answer equations fastest, getting the other students engaged. Traub wrote Dzhokhar a recommendation letter for college in 2010 and read it to the court. Miriam Conrad asked him, “Were you sincere in how you described Dzhokhar then?”

Traub answered, “Yes, I was.”

“Do you still believe these words to be true today?”

“Yes, I do.”

Conrad asked him about his reaction to the bombing, and Traub said that he thought when Dzhokhar was identified as a suspect there had to be some mistake. Then, although the prosecution was objecting left and right to similarly themed questions, Conrad snuck in, “Do you think Dzhokhar had you fooled in high school?”

“Objection!” the prosecution cried, the lawyer flying out of his seat.

There was a pause, but before the judge could make a ruling, Traub cut in, directly and with an air of defiance: “No, I don’t.”

The prosecution attorney sat down. “Withdrawn,” he said, with a defeated sigh.

I’ll probably never meet Mr. Traub in person, but I will admire him for making that statement for the rest of my life.

Dzhokhar with teacher Eric Traub and a friend in math class, ostensibly while hiding his secretly radical Muslim self.

With all this in mind, I would like to return to the six mechanisms of radicalization as defined by McCauley and Moskalenko, and see how many apply to both Tamerlan and Dzhokhar.

Mechanisms of Radicalization Present in Tamerlan Tsarnaev

Personal Grievance (“Harm to self or loved ones can move individuals to hostility and violence toward perpetrators”) – Yes. Tamerlan experienced a series of personal failures, including in music and especially boxing, when he was unable to move to the nationals for not being a US citizen. He was also of Chechen and Dagestani descent, people who have a long history of experiencing persecution and violence at the hand of the Russian government. Tamerlan and Dzhokhar’s father suffers long term from PTSD as a result of this conflict.

Group Grievance (“Threat or harm to a group or cause the individual cares about can move the individual to hostility and violence toward perpetrators.”) – Yes. It is by now well-documented that Tamerlan took a sharp turn to Islam and felt especially angered about the violence toward Muslims in Syria and other Middle-Eastern countries.

Slippery Slope (“Small involvements in political conflict can create new forces moving an individual toward radicalization.”) – Likely. Tamerlan certainly searched for involvement in groups in Dagestan, even though he didn’t ultimately join them. Also, a key element to the slippery slope mechanism is that each step toward violence provides motivation to keep moving forward. Since Tamerlan is the one who assembled the bombs, it can be said that this slippery slope was present for him once the plot began.

Love (“Love for someone already radicalized can move an individual toward radicalization.”) – Yes. Tamerlan and Dzhokhar’s mother Zubeidat also became very religious and encouraged Tamerlan to follow.

Risk and Status (“The attractions of risk-taking and status can move individuals, especially young males, to radical political action.”) – Yes. Tamerlan certainly had a thirst for recognition and glory, given his aspirations to be an Olympic boxer. He also seemed enamored with the aesthetic of a jihadist, given his photoshoots.

Unfreezing (“Loss of social connection can open an individual to new ideas and new identity that may include political radicalization.”) – Yes. Tamerlan’s volatile nature and pushiness about Islam alienated him from existing friends, and even in Dagestan his demeanor seemed too “American” to allow him to fit in well. In addition, a cousin told the FBI in a 302 that Tamerlan had joined a locked group on a Russian social media site, which made the cousin uneasy because he couldn’t figure out who Tamerlan was in there with and why it needed to be locked.

Mechanisms of Radicalization Present in Dzhokhar Tsarnaev

Personal Grievance – Maybe. Dzhokhar did list the conflict in Chechnya affecting his family members to be the reason his grades were failing at UMass Dartmouth. But it should be noted that given the Tsarnaevs’ cultural background, there is unlikely to be anyone from their ethnicity whose family or friends have not experienced persecution. Unlike Tamerlan, Dzhokhar did not ever speak out about it in anger to anyone.

Group Grievance – Maybe. With Dzhokhar being from both a cultural background with a long history of oppression and a faith that especially in recent years has been vilified in the United States, I would honestly be surprised if he didn’t have some strong feelings about it. But the only statement that made it into court – that he told his friend Steven Silva that he thought America meddled too much in Muslim countries – isn’t so much a radical opinion as an observation of fact that could be made by anyone who isn’t blind.

Slippery Slope – No. Dzhokhar had no prior history of political activism or violence, which is what made his involvement in the bombing so shocking to everyone who knew him.

Love – Yes(?). The defense banked their entire case on this, in fact. Tamerlan was certainly radicalized and so was their mother. However, what earns it a question mark in my mind is that although the trajectory of both Zubeidat and Tamerlan are so strong and persisted for a number of years, Dzhokhar never at any point seemed to follow suit – before the bombing, anyway. There was no testimony that Zubeidat encouraged Dzhokhar to be more religious the way she encouraged Tamerlan. The only evidence presented that showed correspondence between the two brothers were a sparse number of emails, mostly over the time when Tamerlan was in Russia in 2012. These were not actual conversations, but rather usually links from Tamerlan without commentary sent to his wife, Dzhokhar, and sometimes an unidentified third party. They were usually articles or videos with a jihadi bent. Dzhokhar, however, showed no engagement with the material. Once he thanked Tamerlan for the link and spent the rest of the email lamenting being unable to get in touch with him by phone. Another time he agreed that it was important to spread Islam, but this did not elicit a response from Tamerlan either. Finally, the only link Dzhokhar sent back to Tamerlan was analyzed by a specialist on both the North Caucasus and Islam, and he reported that not only was the site was a moderate government sponsored site in Russia, but that the link itself contained a story from a Muslim mystic who is universally reviled by jihadists because it flies in the face of their violent ideology. In other words, Dzhokhar was offering a different point of view that countered the nonsense that Tamerlan was trying to feed him. The rest of the emails were about cars.

I believe beyond a doubt that Dzhokhar loved his brother. But I also think he was smart enough to recognize Tamerlan’s failings and avoided involvement with his crazy ideas… at least for as long as he could.

Risk and Status – No. Dzhokhar never exhibited or expressed desire for glory, fame or power. His risk-taking behavior – smoking, drinking underage, smoking and selling marijuana – are typical for his age. You would be hard pressed to find someone in this peer group who didn’t engage in at least one of these activities, even a goody two shoes like me. (It should also be noted that in 2012 medical marijuana was legalized in Massachusetts by an almost unanimous vote, and a vote to legalize it completely is planned for the 2016 ballot, so lax is our attitude toward it. Smoking and selling pot as a sign of bad character is a really thin argument around here.)

Unfreezing – No. Dzhokhar was not socially isolated prior to the bombing, nor did he make any dramatic changes in who he hung out with, seem to spend a surprising amount of time with Tamerlan, or engage in any radical discussions online. The prosecution made a big deal about his “secret Muslim Twitter account,” but he only posted eight times over 48 hours and simply mentioned prayer and that certain sermons of Anwar al-Awlaki – who was an al-Qaeda affiliated scholar, but whose sermons were not all extremist in nature – were enlightening. I don’t consider this definitive proof of anything except, perhaps, that a young Muslim was trying to figure out his faith and where he stood on it. After two days, he seemed to lose interest. Besides, he followed it with his main Twitter account, so if he was striving to be sneaky about it, he wasn’t trying very hard.

I will admit that even the experts can’t clearly determine which of these six mechanisms is more likely to show up in a single person, or how exactly they all combine together to move an individual to violence. However, McCauley and Moskalenko state, “We do not expect that any one mechanism is necessary for radicalization to occur, and only in rare cases – perhaps group grievance for lone wolf terrorists – is one mechanism sufficient for radicalization“(214, emphasis mine). So what they are saying is that not only are none of the mechanisms specifically needed for radicalization, but it is very unlikely that only one is enough to fuel violent acts. The threshold to push someone over the edge generally has to be higher than that. If we look back to the breakdown of mechanisms present in Dzhokhar, the only “yes” is love, and even then I had certain caveats. Despite the note by McCauley and Moskalenko that group grievance might be enough for lone wolf terrorists, my reservations about this in Dzhokhar’s case still apply. So if all we have is love, and love isn’t enough to explain Dzhokhar’s actions, then we are faced with a dilemma – because he definitely still committed the bombing. But I think we can safely rule out political radicalization as the motivating factor.

So what are we left with? Well, there is the possibility that he might have been mentally ill. This can be easily eliminated, however, by the heaps of testimony that he was well-adjusted and well-liked. If being secretly radicalized is difficult for an adolescent to hide, even more so is a psychological disorder. Then we have what I wondered about from the start, and the nagging suspicion returned as I sat through the defense portion of the trial – as I heard more and more about Tamerlan, about his size and strength, his ability to intimidate people and push them around, and the evidence that not only could he hurt a loved one in anger, but that she would then cover it up for him. In fact, the answer seemed so obvious to me by the end, I could taste it in the courtroom, even though the defense didn’t dare say it.

Then, in their rebuttal to the defense’s closing arguments, the prosecution went right ahead and said it anyway: “The defendant would have you believe that ‘my brother made me do it.'”

Yes, actually. I absolutely believe that he did.

Dzhokhar and Tamerlan outside their Cambridge home, circa early 2000s.

Part Four: What Went Wrong

I have laid out my own case to the best of my ability. I do not necessarily think you will believe my alternate version, but I hope you can at least see where I’m coming from when I say that Dzhokhar was tried, convicted and sentenced to death based on a version of events that is simply not accurate.

The question now becomes how was this allowed to happen? And, if I am right about the possibility that Dzhokhar was acting under duress and fear, why didn’t his counsel team bring that defense, instead of dancing around it and using words like “influence” and “admiration” of his brother?

The answer goes back right to the source, well before the trial even started: Boston. Dzhokhar’s trial should never have been allowed to remain in this city. The jury pool is so inherently tainted, due not only to the crimes in question – which targeted a widely known, highly televised event – but that the entire city was forced into lockdown on April 19, 2013 while the authorities searched for Dzhokhar. At that time, we were told not only that he was already guilty, but he posed such a large scale threat we needed to stay inside our homes. And, since I experienced it myself, I can tell you that the only thing to do that day was sit there and watch the news about him. The idea that there could be anyone in the city who wouldn’t have been personally affected by – or known someone who was personally affected by – either the Marathon itself or the subsequent city lockdown is rather preposterous.

Additionally, there was the question of finding a “death-qualified jury,” that is, a certain number of people willing to impose the death penalty in a state without the death penalty. In a really enlightening roundtable discussion at Democracy Now! a couple of days ago, host Amy Goodman spoke to the ACLU’s Denny LeBoeuf, who has had 26 years’ experience as a capital defense attorney. LeBoeuf explained the inherent unfairness of finding a death-qualified jury in Massachusetts, where 85% of the population oppose the death penalty:

You have to ask the jury, “Can you consider a death sentence?” And they’re told, “Don’t tell us how you’re going to vote, but tell us that you can seriously make a death penalty a possibility if at the end of this process you’ve convicted him of a death-eligible offense.” And having picked some death-qualified juries in a very Catholic city, New Orleans, you watch as you lose a lot of Catholics, most of your African-American and other people of color—you lose all the people who, even for non-religious reasons, don’t have a strong sense that the authorities, that the government, is always right and always tells the truth and always gives you the straight angle on what’s going on and what the facts are. And you’re instead picking a jury from a very small, unrepresentative, very conservative, conviction-prone pool. And it’s the central unfairness of this process that couldn’t be more dramatic in this case.

This didn’t surprise me, as my first impression of Dzhokhar’s jury was that they all looked white, old, and angry. Even after three weeks of sitting in the courtroom, that impression didn’t change much. In total, I counted two people who could have been under thirty, another three or four who could have been under forty, and only one person who could have been a person of color – or perhaps just a Greek or Italian with a tan. This group included the six alternates, and I wasn’t present when the twelve adjourned to the jury room, so I can’t even say which of these made it to the deliberations.

I’ve talked at length with my father about this case and the defense Dzhokhar’s team could bring. It was my dad, in fact, who first suggested the duress defense, only days after Dzhokhar’s capture, when I too was still with everyone else in thinking he must be guilty. We’ve also talked a lot since about what the defense chose to do instead and why. I’m going to have to bow to my father’s words on this, since he was the criminal defense attorney, not me, but I can summarize them to the best of my ability. He believes – and I agree – that the defense team would have loved to bring the duress defense, but given the unprecedented resistance they were faced with in the denial of a venue change and the inevitability they would face a tainted jury pool, they had to abandon that strategy, knowing no jury would ever believe it. Instead, they were forced to assume he’d already been convicted and focus on saving his life. This materially altered their strategy and accounts for the almost non-existent case they brought during the guilt phase, aggravated even more by the ruling that Tamerlan could not be mentioned. As a result, their entire end game became saving Dzhokhar from the death penalty and getting everything else on record for the appeals.

As for the appeals themselves, what grounds are there? Even offhand, without doing any research, my dad said there are tons and tons. Right off he named 1) denial of effective assistance of counsel, due to the fact that the defense was blocked from bringing the strongest case it could, 2) denial of the right for Dzhokhar to assist in his own defense, due in part to the Special Administrative Measures placed on him in pre-trial custody, among other things, and 3) denial of his Sixth Amendment right to confront his accusers, which means he could have been able to take the stand if he’d had an impartial venue, but in the current one it was too risky. These are just a few of many, and in the Democracy Now! interview, Hofstra constitutional law professor Eric Freedman outlines more:

…there will be an appeal about the failure to change venue, there will be an appeal about the failure to give this instruction [from the judge to the jury about the law that a holdout from one juror results in an automatic life sentence, not a hung jury that could result in a retrial, requested repeatedly from the defense and denied by the judge]. All the other stuff that is buried in this record, that’s going to result in a brief of over a thousand pages on appeal, we don’t know about yet. Many of the things that the defense may have been complaining about that they weren’t given access to put together that mitigation case, because they couldn’t get a visa to Russia, hypothetically, or because other efforts were made to block evidence, almost by definition, we don’t know about yet.

All in all, and as many news outlets are already saying, this saga is far from over. The appeals are just gearing up, and considering all the unconstitutional missteps taken, it could be years or even over a decade before it’s all cleared up, or even overturned and retried.

Other than wish for a time machine for all involved, I’m not sure.

Part Five: What Now?

I’ve been wondering this myself. For two years, I’ve been waiting for answers. Now that I have them, I don’t know what to do with them. I feel I have uncovered something unsightly, and I don’t feel triumphant – just queasy. I know the majority of the world doesn’t share my opinion. I know the name Dzhokhar Tsarnaev has become synonymous with the most heinous and evil deeds of which a human being is capable. And I don’t deny that he did them; even he doesn’t deny that he did them. But in testimony that didn’t receive as much weight as I thought was due, I heard a nun, Sister Helen Prejean, a fierce advocate of death penalty abolition, speak of him with fondness. She expressed genuine appreciation that she was able to discuss the differences between Catholicism and Islam with him. And I heard, in one sentence, everything I had needed to know if I’d ever been granted a chance to speak to him myself, about how he feels about the horror he caused: “No one deserves to suffer like they did.”

No one deserves to suffer like they did.

One simple sentence conveys so much: empathy, an inclusiveness of human life, understanding of the gravity of what he did, and true remorse. I hold these words close, the last communication we may ever get from someone who used to shoot pithy observations into the Twittersphere several times a day.

No one deserves to suffer like they did.

I agree with him. No one does – not even Dzhokhar himself. The cycle has to stop somewhere.

Because we’re not dealing with a war criminal, or a terrorist mastermind backed by a powerful organization with a campaign of misdeeds under his belt. We’re dealing with someone who was a good kid, who still is a good kid. He’s a good kid who, through lack of perceived options and the foresight of an adult brain, made one colossal mistake, and is paying, and paying, and paying. Everything else – the designation of terrorist, the ruthless rush to judgment without considering facts, the unfair trial – that’s on us.

Make no mistake: I love America. I was born and raised here, and I grew up believing we are the best and freest country in the world, that we stand for justice and integrity and fairness. And I still believe we are among the best – every semester I have scores of students from impoverished or war-torn countries writing about the opportunities available to them here that were never a possibility in their homeland, and I feel a swell of pride. I am the descendant of Irish who fled famine and oppression, of an Armenian whose entire village was wiped out in a genocide that, even one hundred years later, hasn’t been officially recognized. I wouldn’t exist if not for an America that let these people in, that fostered them and allowed them to grow and flourish. But the love I have for America is an unconditional love, which means it can endure, even when I am angry or disappointed in my country. And after what I witnessed at Dzhokhar’s trial, I am downright appalled. He’s not the worst of the worst with decades of depravity to his name. He is a 21-year-old kid who could have graduated college this weekend if circumstances had been slightly different. And if the unfairness that happened at his trial could befall him, then it could happen to your friend, your nephew, your son. It could happen to me, and it could happen to you. Guilt or innocence doesn’t matter: everyone has the right to a fair trial in this country, and the right to have their punishment fit their crimes. The fact that Dzhokhar didn’t get one and wound up with a much harsher sentence than he deserves is such a blot on our character as a nation that I am embarrassed for us.

Is this the kind of justice we want to stand for?

I don’t think it is. Which is why I’m here, writing this to you. I hope you are out there somewhere reading these words, and they have given you a measure of understanding. If you have made it this far, thank you for taking the time to read and consider my point of view.

And as for Dzhokhar – I can only pray that he maintains the virtues described by all the people who knew and love him. He’s going to need every one for the struggle to come.

65 thoughts on “Dzhokhar Tsarnaev Did Not Get a Fair Trial, and Here’s Why”

Another deeply humane, insightful posting on this young man, which adds greatly to the discussion. Thank you once again. I must say, however, I was quite taken aback by your insistence that “he definitely committed the bombings,” since your wonderful psychological profiling of DT led me to exactly the opposite conclusion – that he would not have been so intimidated by his older brother as to engage in the murder of children. He comes across (at least to me) as made of sterner stuff, even in the face of extreme duress. But the real problem many of us have is with the fundamental ‘evidence’ provided by the prosecution – namely, that the backpacks don’t match, and no amount of backstory or psychological profiling, in my opinion, can get around this simple obstacle. Those young men did not carry pressure cooker bombs in their packs (though Tsarnaev “may’ have carried something more sophisticated?). DT’s pack appears to be virtually empty. However, I won’t burden your blog site with an argument, this has been thoroughly discussed at:

Also, I think great caution is in order in the face of assertions that he has admitted to any guilt or hasn’t denied his participation. Again, this has been discussed thoroughly elsewhere, and I won’t burden you with an argument.

But I do want to recommend to you the wonderful anti-death penalty advocate, Margo Schulter (from Sacramento, CA), since you and she are on the same page. I think you will really resonate with this outstanding essay of hers, if you haven’t seen it already. She says in the comments that she ‘presumes’ the government’s official narrative because she is not an expert in criminal law and her arguments are independant of his guilt or innocence of the crimes. But what a lesson in humanity and compassion. She leaves the critique of his guilt to her friend, UK attorney, ‘Jane 24,’ who hosted the essay and who’s very wise remarks can be read in the comments section.

Thank you again for a lovely and nuanced commentary. I truly appreciate that we can engage on this even though we don’t see eye-to-eye on all the issues. (It is truly a breath of fresh air; on this topic I am far too used to vitriolic responses.) I deeply enjoyed the post by Margo Schulter as well – thank you so much for that. I am passing it along to my attorney dad, because I think he will appreciate it. 🙂

Like Ms. Schulter, however, I’m forced to view the case through an academic lens, and there’s a finite number of things I’m able to speak on that don’t fall into baseless speculation. I have no forensics background, so for the moment I must take such evidence presented at trial at face value. That being said, I consider the fairness of trial to be the larger issue – if the trial had been fair, then perhaps some evidence would’ve been allowed in that could have changed my mind. Guilt or innocence aside, my main focus is that Dzhokhar is a human being and should be treated as such. Such rights, guaranteed by this country, have been stripped from him. Regardless of his level of culpability, that is a huge problem.

Wow Heather Great job! If nothing else this grants me hope that appeals may save this boy’s life. I hope you don’t mind, I shared the link to this blog on another. They have done two years of non stop tireless DAILY research into all the blatant and not so blatant inconsistencies that we have been fed by media and government. I believe they will benefit from your insight. If nothing else, knowing there are intelligent beings still using their common sense.

Justice and truth needs to be served to the victims, all of Boston, America and yes even Jahar

Thank you so much again for reading and your compliments, and I am honored that you shared my blog. I do think(hope!) the high-profile nature of the case and the unpopularity of the verdict will eventually force the powers that be to do a close reevaluation of the inherent prejudices present in the system. For now, we must have faith and speak bravely and logically about it. Thank you again for reassuring me that there are intelligent people out there who care. 🙂

Heather,
first I must say you are a beautiful writer as well as a beautiful and compassionate person also. I agree with most of what you say and thank you for sharing the details of your days in court. You have great insight to hear between the words and describe so much through your feelings.
I felt like I was there in court also.

I don’t think Dzhokhar is guilty, but even if he is guilty, he still does not deserve the relentless punishments he has already endured, and certainly does not deserve the death penalty, no one does. He deserves to be treated with fairness and care and compassion, as any human being does. Instead of extreme punishment, the “justice” system should be counselling and rehabilitating young people who should be given a second chance at life.

Someone who is so good and kind their whole life should never be thrown away over one horrible mistake, and someone who is innocent should be given every support and opportunity to prove that.
Thank you for such a thoughtful and truthful story.
(I too will be sharing this with others)

Thank you so much for your amazing compliments. I am glad I was able to convey the feeling of being inside the courtroom – I was supremely disappointed in the media’s version of events. So many of the important nuances became lost or misconstrued in their accounts.

I absolutely agree that the justice system should be be about rehabilitation, especially to someone who was so young at the time of the crimes. To be honest, although there was apparently a lot of flack taken by the defense for sneaking in Sister Prejean to see Dzhokhar, my initial reaction to hearing that she had met with him was relief that he had someone to talk to, even briefly, about the whole ordeal.

As this is far from over, I am still hopeful that something will change and he will, eventually, be given a second chance himself.

Hi Heather,
thank you for your reply. I too am hopeful that some day Dzhokhar will be given a second chance. There are now many many people who clearly can see the injustices that have taken place in this trial. I would very much like to ask you a few other questions from your days in court, but privately. Would you be open to communicating with me through email or a phone call. If so, please let me know, and how could we do that without putting our personal contact info on this blog. Is it possible? Looking forward to your reply. Thank you.

I think we can all agree, at the very least, this young man deserves a new trial- preferably with a new defense team. Such a trial, however, would cost many millions, but for some mysterious (ungrounded) reason I feel the money is going to arrive. Also, I see you have been mentioned favorably at the Discussion board of The Boston Bombing: What Happened (which is really hot right now) and Jane 24 has expressed her appreciation for your posting. One clarification, I don’t know for certain that she is an attorney, but she’s clearly an expert on the law. A powerful momentum is building behind this case and we’re not even a full week past the sentencing.

Yes, I will agree with you to the ends of the earth that he deserves a new trial in an impartial venue. I know Dzhokhar’s defense team has also taken criticism, but between my own observations and my father’s legal analysis, I believe they did the best for him that they could under terrible circumstances. I got the distinct and unrelenting sense that they were fighting for him with everything they had… but when a train is already veering off a cliff, pumping the brakes can only do so much, unfortunately.

Thank you so much for letting me know about others who have enjoyed the post! I am really honored that so many people out there care about my thoughts on this issue. My appreciation goes out to each and every one, so if you are here but just lurking, thank you as well. 🙂

Thank you, Heather, for an article that, to borrow the words of Richard Demma, richly resonates with me, and raises the very real issue of duress, maybe as a full legal defense as well as the powerful mitigating factor of “influence” or “domination” of Dzhokhar by Tamerlan.

From the viewpoint of an appeal, I find in your article a very useful concept to describe what happened: the “radicalization” of the penalty phase from an inquiry into Dzhokhar’s life and value as a human being apart from his crimes themselves (however voluntary or coerced), to a kind of witchhunt where his every deed must be interpreted in light of the bombings, and given the most aggravated or unmitigating interpretation imaginable by some often very imaginative prosecutors.

What you bring out so powerfully is the basic fact that at no point before the bombings, nor after his arrest, was Dzhokhar involved in any violence. And even from the perspective of current death penalty law in the U.S.A., that adds weight to his being age 19 at the time of the crimes as an indicator that his character is not irredemably evil.

In the decision of Roper v. Simmons (2005), the Supreme Court of the United States (SCOTUS) held that no matter how aggravated the crime, no one who offended below the age of 18 may be subject to the death penalty. The Court explained: “An unacceptable likelihood exists that the brutality or coldblooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.”

In drawing a line at 18 as the age below which execution is categorically excluded, the Roper Court added “The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” This suggests that for a defendant who was 18 or 19 at the time of the crime, youth must be a powerful mitigating factor to be weighed as such, rather than to be discounted.

Also, there’s a vital factor you addressed as someone who was there: the life-threatening injuries Dzhokhar suffered before his arrest, which could affect not only his facial expression and gait, but in other ways impair his ability to establish nonverbal rapport with the jury. Despite the judge’s instruction not to take into account Dzhokhar’s “demeanor” in determining the penalty, the aftereffects of Dzhokhar’s wounds could easily bring into play what one early death penalty statute described as “passion, prejudice, or any other arbitrary factor” in the decision of life or death (Georgia statute, 1973).

Finally, Judge O’Toole’s refusal to admit any guilt phase evidence of Dzhokhar’s having acted under duress or coercion by his older brother may actually have prejudiced the defense in both phases of the trial, as studies based on interviews with actual capital jurors who voted for life or death indicate.

While in theory the jurors should have no views on penalty until the penalty phase is finished and life or death deliberations begin, these studies indicate that “premature” decisionmaking about the death penalty often occurs by the end of the guilt phase, based on the stories of the crime that jurors have come to believe. Once fixed in the minds of the jurors, these stories and opinions about the right penalty can be hard to shake during the penalty phase. So leaving Tamerlan out of the guilt phase, except when the prosecution found it necessary to include him, of course (as you so well point out), was a strategy of choice for stampeding the jury toward a death verdict.

In short, under existing law, one appellate claim toward which we may be gropping (and I’d be eager to learn your dad’s reaction) is that cumulative errors in both phases of the trial, plus the denial of a change of venue, resulted in a jury unable “to listen” and give effect to the compelling mitigation relating to the character and record of the 19-year-old offender Dzhokhar Tsarnaev, see Eddings v. Oklahoma (1982).

Please forgive me for commenting at this length about how your moving account of Dzhokhar Tsarnaev may tie in with cases like Roper and Eddings. But your article beautifully expresses in human terms the values behind the legal arguments we are seeking.

Don’t worry about the length of your reply – in fact, thank you for taking the time to write such a nuanced and fascinating response! I read and very much enjoyed your own post on this topic and am honored you have taken the time to stop by.

I agree wholeheartedly with your assessment of the radicalization of the jury against Dzhokhar. In fact, I would go so far as to argue the entire city had already been radicalized against him since the day he was identified as a suspect, due to the unprecedented measures taken in the attempt to apprehend him. This returns to the issue of the inherently tainted jury pool and points to the denied need of a venue change. I can personally attest to feeling that pull of public opinion, although it was accompanied by a nagging in the back of my head that perhaps the situation wasn’t nearly as dire as everyone was making it out to be. (Joined by the unshakeable image I had that April 19th that he was actually cowering and bleeding in someone’s basement instead of on the loose and intent upon killing us all – a scenario which wound up not being far from the truth.)

As to what happened in the courtroom, however, I agree with you that the prosecution spared no opportunity to exaggerate reality to absurd proportions in an attempt to make Dzhokhar look unsympathetic. I can think of at least half a dozen instances off the top of my head, but the most prominent is probably the only actual “evidence” the prosecution brought in the penalty phase that supposedly spoke to Dzhokhar’s lack of remorse – the middle finger given to the security camera while he was in lockup in July 2013. The prosecution only displayed a still image of the gesture because in reality he does it for such a small amount of time it’s possible the jury would have missed it otherwise. There was a great deal of back and forth between the prosecution and defense about this middle finger and what it meant, even though to me it was all so laughable. The prosecution certainly took the position that it indicated Dzhokhar was gleefully giving America the middle finger and stood by his crimes as justified. The defense, however, pulled the whole video to display it in context and show he was clearly bored and not thinking when he did it. They also called the federal marshal who spoke to Dzhokhar about the incident to the stand to testify that he immediately apologized and didn’t “act out” further, and that in the grand scheme of things, an inmate flipping off a camera is among the very least of possible infractions. So minor was the incident the marshal has never had to write up a report for something like that before, and in fact forgot about it for days until someone from above told him to do it. Judy Clarke mentioned this in her summations, and in what felt like an adlibbed statement of frustration, added, “This is the kind of scrutiny this kid is under.”

And yet, according to reports, 10 out of 12 jurors thought he had demonstrated no remorse for his actions. Since there was literally nothing else brought by the government in the penalty phase to indicate this, I can only conclude that the jury had made up their minds long before, and any shred of evidence to back up their opinions, even a still image of a middle finger, was enough to justify their view that a 19-year-old boy could never be redeemed.

This ties in to your own observations about how the guilt and penalty phases were set up and how they were undoubtedly unfair. At the end of every day of the defense’s case I found myself saying, “I wish they’d been able to bring this in the last phase.” I think the evidence of Tamerlan’s overall menacing presence in many people’s lives, plus the relevant cultural background of the Chechen family structure could have provided the needed context to suggest a duress defense in an impartial venue – and honestly, that’s what it seemed like was being presented anyway. Family witnesses testified that younger siblings HAVE to obey their elder brothers, whether they want to or not. Tamerlan’s domineering nature scared a number of people, relatives and acquaintances alike. And the surveillance footage of the Wrai Kru Gym three days before the bombing showed that Dzhokhar was unwilling to participate in the exercises and only did so when ordered by Tamerlan – and that Tamerlan even threw some gym equipment in his face in a manner I would not describe as gentle. These factors certainly made me wonder what else of a threatening nature might have gone on between the two of them when no one was there to witness it. I suspect, however, the defense knew claiming duress in a venue with everyone so prejudiced against Dzhokhar would likely backfire. But, having sat through all of their case, I must report it truly felt like the word was on the tip of many people’s tongues the entire time.

I could go on (and on and on), but I’ve surely gone on enough for one comment. Thank you again for this wonderful response and your own thoughtful posting. I’m forwarding this comment to my father and since you asked, I’d be happy to reply again with his thoughts. He’s been following my posts and read yours as well, but he’s not terribly tech-savvy, so I’m acting as a go-between for him. 🙂

I thought your observations about Jahar’s injuries being critical to the way he was perceived during the trail, are on point. I wondered about this myself and wanted to know if his attorney’s made any comments to the jury before the trial got started that he had major injuries that caused secondary issues like hearing loss in one ear, facial scaring (lip turned down to a frown on one side) or even mood issues (he’s a kid whose had debilitating pain from his injuries I’m sure), possible headaches from his jaw being sewn shut and marked with bullets. The fact that he survived that night is astonishing. He should have died with the injuries he had and the way they pulled him out of the boat and hand cuffed him on the ground as if he was a threat. The whole scene was a complete embarrassment. I understand the fear and anger, but the shear rage these law enforcement, SWAT and FBI guys had was crazy. I don’t know why he survived only to be kept alive long enough to go through this incredibly sad process.

Sorry for the delay, but I’ve been going back and forth with my dad the last few days, working out a response to your appeal question. He wrote up a summary for me via email, and I think quoting directly from the horse’s mouth is the best way to relay the information. However, I’ve added a few notes of my own for clarification.

He writes:

I have been thinking about Margo Schulter’s reply and the question that she posed for me. She wonders if the trial errors resulted in a jury that could not “listen” to the mitigating factors. I believe that by “listen” she means was the jury “detached and disinterested”; were they capable of being “fair, impartial and unbiased” when it came to weighing the evidence? The jury is the “Trier of Fact”; they sift through the evidence, believing some, disbelieving other, and giving some more weight or less weight and in the end they determine what is true. In its purest form the trial is a search for the truth. Was this jury capable of finding the truth? What do you and Ms. Schulter think and why do you think that? Remember, you must state a factual basis for your opinion or else it is nothing more than speculation and conjecture.

Let me explain, in very succinct form, how I would attack this appeal.

1) SAMS (Special Administrative Measures):

These are new and were never in place when I was practicing criminal defense. If I understand these correctly counsel was not permitted to have confidential communication with the defendant. Confidential conversations are essential in order to get the defendant’s version of what happened. You must establish what the defendant actually did and get him to commit to a final version of the facts that are carved in stone and from which he can not deviate. Counsel can then prepare the theory of the case and formulate the tactics that will be used at trial. This is the essence of having the defendant “assist in his own defense” which is a 6th Amendment Right. This results in an egregious denial of the effective assistance of counsel.

[Heather’s note: To my knowledge, for the most part, defense counsel was allowed confidential meetings with Dzhokhar, but a number of the SAMs restrictions had to be changed by court order to allow for this. Specifically, meetings with a mental health specialist without an FBI agent present and the viewing of a number of photographs planned to be entered by the prosecution as evidence had to be cleared by the court first. I still agree that this hindered the defense’s ability to do their jobs effectively, and of course, these are only incidents that made it to the public. There may be more we don’t know about.]

2) FAILURE TO GRANT CHANGE OF VENUE:

As I set forth above the jury must be detached and disinterested and fair, impartial and unbiased. So must the trial judge! The judge and the jury are all residents of the Boston area and were all affected by the bombing and the subsequent events. Especially the citywide lockdown and the sensationalized, biased and at times untrue media coverage. They were as much victims as other residents of the city. The victims of the crime are the defendant’s accusers. How can the defendant exercise his 6th Amendment right to confront his accusers when the judge and jury are the accusers? I can tell you from experience that having the defendant confront the accuser in court, under oath, on the witness stand in front of a fair and impartial jury, is one of the most powerful tools that the defense counsel has. Everyone wants to hear the accused’s side of the story. If you have an innocent defendant who is not going to get up there and commit perjury, then you have him testify.

In this case this could not be done in Boston, thus the necessity of a change of venue. Failure to do so forced the defense counsel to change her theory of the case and her trial strategy, again resulting in a denial of effective assistance of counsel.

3) DEATH QUALIFIED JURY:

I have not read the statute that allows (or requires?) the judge to impanel this type of mindset, which I would have to do in order to frame an accurate appellate issue, but off of the top of my head, I would be looking at these issues.

a) The judicial process involved in selecting these people allows the prosecution to “jury shop” at the expense of the defendant. This produces a jury that is more conservative and austere in its moral philosophy. They see justice as an “eye for an eye, a tooth for a tooth” endeavor. The ACLU attorney [Heather’s note: Denny LeBeouf, in the roundtable discussion of the case at Democracy Now!] indicated that this excludes many Catholics, people of color, liberals, people of conscience; and I would add Jewish people, the highly educated and probably many young adults, especially in a very cosmopolitan city like Boston.

b) The exclusion of so many different groups of individuals denies the defendant a jury of his “peers or equals” as is mandated under the 6th Amendment and set forth in several cases. You effectively provide the state with a “hanging jury.”

4) FAILURE OF THE JUDGE TO GIVE THE REQUESTED JURY INSTRUCTION IN THE PENALTY PHASE:

[Heather’s note: This is also explained in more detail in the Democracy Now! discussion, as outlined by Hofstra constitutional law professor Eric Freedman. Basically, the defense asked for Judge O’Toole to give the jury the instruction that if there were any holdout jurors for the death penalty, the sentence would be life in prison without parole or release, not result in a hung jury that would carry the possibility of retrial. The judge refused, then didn’t give a reason on record. This might be on record from a discussion in chambers, but at the moment we don’t know if that is the case.]

Is this an instruction that is required to be given by statute? I have heard that this instruction has been given 70+ times in the past. If this is a required instruction and the judge refused to give it, then this is a prejudicial error in a ruling of law and is reversible on its face. If this instruction is in the discretion of the trial judge, then you have to show that he “abused his discretion” and that is more difficult to do.

5) DEATH PENALTY AS CRUEL & UNUSUAL PUNISHMENT:

Furman vs. Georgia (1972) decided that capital punishment was cruel and unusual if it was arbitrarily and capriciously applied with no uniform standard, violating the 8th and 14th amendments. In some circles people thought this outlawed capital punishment, but this is not the case. Many states reviewed their statutes with the standard set forth in Furman vs. Georgia to determine whether the statutes as written were constitutional or if they constituted cruel and unusual punishment. After this case, there was a moratorium on the death penalty all throughout the country while states decided the constitutionality of their statutes.

Is this going to be readdressed in this appeals process by saying the actual act of state-sponsored execution is cruel and unusual and therefore unconstitutional across the board? I don’t know. But if they want to take the easy way out, it may become a matter of outlawing the death penalty in all cases because otherwise the Tsarnaev case is too politically hot. That way, he gets life and that’s the end of it. However, I don’t know if they’re going to do that – there are too many issues here that need to be addressed.

This is just the tip of the iceberg and I haven’t done any legal research. I am basing this on what has been available in the news media and Heather’s personal accounts. Without being the one in the courtroom trying the case, I can’t say for certain what all of the grounds are and there are probably a lot more. You get a completely different view when you are the defense attorney. However, off the top of my head, these are the most prominent issues I would raise in the briefs for appeal.

Thank you very much for the insights. I have been sympathetic toward Dzhokhar Tsarnaev since he was identified as a suspect. To me, he has never been “a terrorist.”

You mention that you think Tamerlan forced Dzhokhar to take part in the plan. In what way was DT forced, in your opinion?

I think this is a key sentence from your article:

“He’s a good kid who, through lack of perceived options and the foresight of an adult brain, made one colossal mistake, and is paying, and paying, and paying.”

I think that perception that he lacked options is a key factor. Dzhokhar’s age was a major factor also, and one not fully explained or emphasized by the defense.

What I found bizarre and perplexing (and I know other people did too) was that only a few members of the jury bought into the defense mitigating factors at all. This makes me think that the defense’s guilt phase strategy of admitting guilt – which I assume was done as a way to earn the jury’s trust – was a mistake, as the jury never trust them anyway.

Thanks so much for your kind words and thoughtful commentary. To me, Dzhokhar has never been a “terrorist,” either. I’ve spent a good deal of time researching terrorism theory in the last two years and can say that at this time I actually doubt the bombing can be considered terrorism in the strict academic sense. A horrible tragedy that never should have happened, certainly – but terrorism scholars agree that terrorism needs to have a definitive political component, and to me that is lacking here. It seems to be more about Tamerlan’s personal demons and Dzhokhar’s inability to remove himself from his brother’s orbit than a true political action. Unfortunately, especially in America, the general public and even policy makers don’t usually understand the nuances of what makes someone a terrorist. When the label is applied, it gets stuck there and strips a person of the rights he should be guaranteed to have otherwise, which is a huge problem. I have often wondered how differently this event would have been treated and prosecuted if the Tsarnaev brothers had not been Muslim… and came to the uneasy conclusion the difference probably would have been substantial.

As for how Dzhokhar may have been forced into the plot, I refrained from postulating too much in my original post because it does, unfortunately, veer into speculation territory. In my previous comment to Ms. Schulter, I outlined a few more pieces of evidence that, in my mind, lend merit to the duress defense. With that in mind, I think of it this way: imagine you are nineteen. Your parents have been absent in various ways throughout your adolescence and now are out of the country. The only person with any authority in your life is your older brother, who is much bigger than you, with a professional boxing background and a much stronger personality, a demonstrative temper… and is prone to obsessions. In my experience, love often leads someone to forgiving someone’s faults, but that doesn’t mean you have to go along with them. (As evidenced by Dzhokhar’s lack of engagement with the radical material Tamerlan sent him via email.) However, my guess would be that however and whenever Dzhokhar learned of Tamerlan’s bombing plot, something changed. (And I suspect, due to the lack of evidence that he helped assemble the bombs, it was fairly late in the game, even just a week or two beforehand. This was indicated by his hospital confession that wound up struck from the record in court due the amazingly unconstitutional way it was procured.) There is suddenly evidence that someone you love IS very dangerous and IS planning to do something terrible. What do you do? Call the police and risk being disbelieved or arrested yourself for knowing about it? Do you really want to send someone you love and admire to jail? What if your brother finds out beforehand and things turn bad for you for betraying him? He’s got a daughter in the house who’s a toddler. Could he do something to her as well? Maybe it’s better to keep quiet. Maybe he’ll change his mind and won’t actually want to go through with it. Or maybe he’ll call you up last minute and tell you he needs your help. Maybe there isn’t any outright verbal or physical threat, but the implication that things won’t go well for you if you disobey is probably extremely present. Maybe if you just do what he says, it won’t be so bad. Maybe if you put the backpack by a tree and not in a crowd it won’t hurt anyone. Maybe…

Obviously this is supposing a LOT, but I’ve done the thought exercise with several variations and they all kind of follow this pattern of reluctance and rationalization, which is, at the very least, a far cry from the assertion from both the prosecution and the defense that Dzhokhar was “all in” beforehand. To me, all the evidence points to the exact opposite – that he would have been out if he thought he could be. But that goes back to your point about the perception of lack of options. I think it’s really easy for adults to look back on adolescent behavior and cry, “What were you thinking?!” with their hands in the air, but they’ve clearly forgotten what it was like to be an adolescent themselves. I have the fortune to be at an age where I finally know better, but being a teenager wasn’t so long ago that I’ve forgotten completely what it was like. Plus, I have students who are of a similar age to Dzhokhar and a large part of my job is showing them the options they have – which to me are perfectly obvious, but they simply don’t think are available to them. That level of abstract reasoning generally just isn’t there yet. This was pointed out by defense expert Dr. Jay Giedd, who talked about the neuroscience involved in the adolescent brain. The problem is that there are definitely certain people whose brains mature faster and CAN sustain that kind of abstract reasoning by 18, 19, 20. The prosecution pointed this out during cross-exam and I suspect the jury must have taken this to heart, despite the scores of evidence that Dzhokhar obviously hadn’t reached that level of maturity by 19. Thinking someone SHOULD have been able to exercise better judgment doesn’t mean that he COULD have.

I agree with you wholeheartedly that based on the jurors’ responses to the verdict form that they must have completely ignored most of the mitigating factors presented. This, according to my attorney dad, is even more grounds for appeal. I’m forgetting the legal term he used, but it amounts to pointing out they voted in favor of a verdict that completely contradicts the given evidence.

Sorry for such a long response! You really got the gears in my brain turning with this one.

Heather, I tried to find the reports of what Jahar told law enforcement while he was lying in his hospital bed before he was Mirandized about the length of time he was involved in the plan. This is the only statement I could find, but I believe there were other reports that mentioned a more exact timeframe:

“A spokeswoman for U.S. Attorney Carmen Ortiz said: Before being advised of his rights, the 19-year-old suspect told authorities that his older brother, Tamerlan Tsarnaev, 26, only recently had recruited him to be part of the attack.”

What “only recently had recruited him” means, I’m not sure. It could have been a few weeks or a few months.

I know David Bruck said that Jahar was “all-in” at the time of the bombing. But my feeling, based on all of the photos I have seen of Jahar at the Marathon, is that he didn’t want to be there and that he was following instructions. Even when he was standing by the tree behind the Richard family, he has this blank look on his face like he’s utterly depressed. And, it was obvious he chose that tree because of a pre-set plan.

Even the photo of the brothers at the gun range suggests Jahar was subservient to his brother and kind of depressed. Same with the video of them at the Wai Kru gym. And, reports from Danny of Jahar’s behavior in the car were that he hardly said anything.

Could it be possible that Tamerlan had someone else lined up to help him but that this person(s) backed out, so he got Jahar to help him? I still believe others were involved – particularly in the planning. And, why was Tamerlan dressed exactly like the Craft International guys. Did Tamerlan usually wear khakis and a windbreaker? Why were they carrying similar backpacks to the Craft International guys – like they were trying to impersonate these people? How would they even know about the Craft International guys unless someone had told them?

Anyway, none of this absolves Jahar of guilt. It just makes him in my mind less culpable. That the jury didn’t buy this makes me think the jury made up their minds based on the graphic images of the bomb site.

And, that’s another thing. I’m not excusing what these guys did. It’s just that a bomb is not a personal method of killing. You’re not singling someone out and stabbing them or slicing their legs off. You’re setting a pack down in a group of people. It was random chance who was hurt and who wasn’t. But the prosecution’s presentation of evidence made it seem like these three individuals were singled out – that Martin was deliberately targeted. I know it wouldn’t be a popular tactic, but how many innocent civilians are killed by U.S. bombs every week or month? And, especially ironic given it was Boston, but how many innocent people were killed by IRA bombs back in the 70s and 80s? This attack occurred on U.S. soil, but people in other countries deal with terror attacks on a regular basis or did deal with them on a regular basis in the past.

Sorry for the length. I find a lot of hypocrisy on the part of the U.S. government in this case.

I’m not sure I have the articles (my personal archive is kind of a mess right now), but I distinctly recall news reports saying Dzhokhar stated he had only been involved in the plot “a week or two” beforehand, because I remember thinking, “Man, what makes you casually decide, ‘Yeah, I think I’ll help you blow people up in a couple weeks’?” There was also talk about driving around trying to decide whether police stations should be a target, and that originally they were planning to strike the 4th of July celebration on the Esplanade, which led to crazy security measures that year. However, I must say this about the hospital confession: given the manner in which it was obtained, I’ve been forced to disregard just about all of what he said in it. I have a copy of the motion filed by Miriam Conrad to suppress it, and the conditions described were pretty upsetting. He was on extremely strong painkillers and his jaw was wired shut so he had to answer questions by writing in a notebook. (Fortunate, actually, because it’s the only record of the interrogation since the FBI doesn’t tape them.) According to Conrad, he was so impaired he got his address wrong on the first try, and also repeatedly begged for both sleep and a lawyer (at least ten times for the latter). He wasn’t just happily chatting about the plot until someone reminded him of his Miranda rights – they flat-out refused him his rights, and the interrogation continued on and off for 36 hours. This kind of atmosphere is rife for a false confession, in which the person being interrogated becomes so desperate he will start telling investigators anything he thinks they’ll want to hear. So, rightly, the hospital confession was struck, but considering the lack of evidence to the contrary, I do think very late entrance into the plot is probably likely. Which is ultimately unfortunate, considering Dzhokhar was convicted based on the prosecution’s timeline, which included the assertion that he was casing the 2012 Marathon because he quoted a line from the Koran on Twitter the same day. (…Reading that last sentence over, I really wish I was kidding, but I’m not.)

The “all-in” assertion rang hollow with me as well. In fact, when I heard it spoken I was pretty alarmed, but I think given the defense strategy they were forced to take, they were probably afraid that any kind of inconsistency would shred whatever trust in them the jury had left, if there was any to begin with. The wealth of evidence subsequently presented was what convinced me that Dzhokhar was anything but “all-in.” I have the actual video footage of Dzhokhar planting the bomb (available here: http://www.justice.gov/usao-ma/tsarnaev-trial-exhibits under Day 3, Exhibit 22, although the file size is very large), and it paints a much different picture than the photographs. To me, he seems scared, looking around in all different directions for several minutes (but never seems to notice the Richard children, despite all the prosecution’s claims that he targeted them specifically). Also, he barely makes it out of frame before the bomb explodes, which to me suggests he wasn’t in control of its detonation or he would have given himself a wider berth. Only one detonator was found – so I suspect Tamerlan was in possession of it the whole time, and that’s why there was a phone conversation between them to coordinate.

As for Tamerlan having other accomplices, it’s possible, but I don’t have enough information to speculate. I am unfamiliar with Craft International, but to me his attire seemed to be an attempt to look nondescript and unrecognizable (baseball cap, sunglasses, having recently shaved a long-term beard). There was significant testimony about Tamerlan’s dress style and how it had changed over time. He was once very fashion-conscious and described as “flashy” (I saw several pictures of him with fashionable scarves and wearing a fedora), but around the time he got hardcore into Islam he stopped dressing that way, was prone to donning traditional Muslim garb and grew the beard. There was no testimony about changes in Dzhokhar’s appearance and there never seemed to be any. Even the day of the Marathon, he doesn’t seem to be making much of an effort to disguise himself at all. (At least wear the baseball cap forward!) Whether this was because he was unconcerned having rationalized away the gravity of the act or a deliberate attempt to run into someone he knew who could diffuse the situation… I just can’t tell.

And no, I agree with you – none of this absolves him of guilt. However, in law as in morality, there are many degrees of culpability. If we understand the situation at its fullest and most complex, as we should strive to instead of judging without having all the facts, what it unravels to is a terrible mistake made by someone in a bad situation. In a perfect world I would say no, of course he should have had the foresight to know how bad it would be and the courage to stand up to his brother, risking bodily harm in refusing to participate. But in the real world, trying to assess the situation from his point of view, knowing what I know about his age, cultural background and Tamerlan’s volatility? I would have gone along with it too. And if a crime becomes a matter of “any person in this situation could reasonably have acted the same,” then what we have aren’t the most heinous acts of a depraved and irredeemably evil individual. We have something that could have happened to anyone in similar circumstances. The inability to understand the nuances there because we have bred an atmosphere of fear in response to “the terrorist threat” means we’re sweeping in at least one person under a net that has been cast way too widely. And if it happened to Dzhokhar, as I’ve said, it could happen to anyone. Maybe he’s not completely innocent, but there’s probably those out there who are, or will be in the future. And because our draconian post-9/11 terrorism laws have stripped away our ability to let the punishment fit the crime, we have an otherwise good kid who’s unlikely to offend again staring at a death sentence for one colossal mistake. I don’t consider that justice; I consider it cruelty.

And you’re absolutely right – I think the attitude toward terrorism in other countries where it is more prevalent are actually far more lenient. I know in Pakistan as well as certain other countries there are “deradicalization programs” that work with people who have been arrested for terrorism offenses to help them understand why violence isn’t the answer. And it has a pretty good success rate! So you have people who were part of actual terrorist organizations, carrying out terrorist attacks, returning to their families after serving their sentences, holding jobs and getting on with their lives. This is in a country with thousands of terrorist attacks a year. In America, we have one isolated attack in a span of many years, and we give the kid the death sentence… yet we’re supposed to be the country that stands for freedom and fairness.

No worries about the length. I like discussing this and I definitely think we’re on the same page here!

Heather, thank you again so much for this thread, and I’m mostly checking in to let you know that I have some ideas on issues of mitigation and some relevant Supreme Court cases. However, I wanted to seek your advice on whether it would be better first to allow some “percolation” time on my rather lengthy previous comment, so that you and your dad have a fair chance to get a word in edgewise, so to speak. You two be the judges.

My concern is to help keep the conversation balanced, and let legal details fit in with rather than overwhelm the human and psychological aspects that you so sensitively address. Again, participating in this dialogue is a great honor, and the issues involving mitigation are profound on many levels.

Your timing couldn’t be better, actually. I just posted my father’s assessment of the upcoming appeals, and I absolutely welcome any legal perspective you have to lend to the discussion. As is probably evident, my strengths lie with the humane side of the issue. Hopefully my dad’s comments can help you out, and I look forward to hearing your thoughts!

Excellent thought piece. Just one thing: Given what I have seen of other trials against young Muslim men including in Boston, and learned the details later – in such a show trial, it is quite possible that Jahar could be innocent. The evidence could have been entirely contrived. Boston prosecutors have previously demonstrated that they are willing to fake cases. Bagging a terrorist, real or fake, results in promotions.

Thanks for your thoughtful comments. I agree that Muslim prejudice is a real problem that has plagued this trial and others. I have looked into the case of Tarek Mehanna here in Boston, including attending a Boston Bar Association talk with several lawyers on his legal team discussing the trial and the appeals process. This raised a lot of the same questions for me that were also raised in this case. (In particular, how an older generation tries to parse internet speak when it’s being used as evidence. One of the lawyers confessed that he didn’t know the meaning of “LOL” and that alarmed me, because in a younger generation the use of “LOL” tends to indicate the sentence it’s attached to isn’t meant to be taken seriously. If people are being convicted based on internet statements that aren’t understood in their full context, that’s a problem in my book… especially when, in Dzhokhar’s case, the requirement of a “death-qualified” jury statistically dictated the pool was bound to be comprised of an older generation of people who probably can’t understand the sarcastic nuances of Twitter posts.)

However, probably the best and most egregious example of how Islamophobia can become prevalent in police investigations and influence the outcome of trials is the podcast Serial, which was hugely popular last autumn. I suggest everyone check it out if they haven’t already: http://serialpodcast.org/ Adnan Syed was charged for domestic murder and not a terrorism crime, but his Pakistani heritage and Muslim religion was certainly used against him wrongly (and outrageously) at every turn.

Finally, I also agree the politically charged motivation of catching and prosecuting a terrorist is a huge factor and can – and in Dzhokhar’s case, did – result in ignoring a slew of mitigating circumstances, including his young age, lack of violent history, and difficult family situation. However, at this time I can only work with the evidence as it was presented at trial. Short of getting my own forensic specialist to analyze the exhibits that placed Dzhokhar at the scene with a backpack that then exploded, for now I must conclude that we’re working with a matter of “why,” not “if.” If new evidence emerges (in the new trial he certainly deserves, for instance) am absolutely open to revising my opinion.

Thanks so much for stopping by and your own compliments. I agree – I am also very encouraged by the level of reasoned and academic debate on a topic that has been ruled by emotion (and, dare I say, hysteria) for so long.

I am working slowly through the new comments and want to give enough time to read and process the articles linked by Margo and Tychesd, so I may be a little late in responding to them. But thank you for posting and I look forward to reading and commenting! I definitely want to keep this conversation going (and may already be working out future posts I want to make on the subject).

What a superb article! Very solid, balanced, and logically cascading analysis woven into a very elegant style and lit with a deep personal touch. Excellent!

On the background of such a thorough dissection a few glaring holes seem like deliberate omissions. I wonder why?

Discussing Dzhokhar’s “radicalization”, you totally skipped the question of his manifesto written while hiding in the boat. Aside from prosecution’s insistence that he wrote it, little is known about producing this “document”, isn’t it? In what part of the boat was it written in relation to where he was lying? In what part of his time on the boat could he write such a long text being wounded? Was it enough daylight? Did he need to sit up to write those straight and neat lines? Was his head protruding over the boat at the risk to be exposed? What explains that the blood streaks ran over the writing and the bullet holes? Could he write it being wounded as he was? Why didn’t the defense ask for forensic graphology and linguistic expert analyses?

On the question of the bombs, the expert opinion seems to be agreeing that they could hardly be manufactured by Tamerlan alone and in his apartment. The source for the amount of powder used in the bombs remains a mystery; they did not find any residue in the apartment; and they did not charge his wife as a co-conspirator trying to get a handle on the bomb-making question.

When you speak of Tamerlan’s radicalization, this might have taken place concurrently with an effort to recruit him as an informer and a patsy. If we know anything about the Chechen character, then it would be a hugely hyper sense of personal honor. In fact, this particular trait is at the root of the uniquely long-drawn wars that the Chechen people do with Russia. If Tamerlan saw abuse of his sense of honor, it would have automatically triggered revenge without any consideration for the scale of proportion (Marathon Bombing). It would be unthinkable for Dzhokhar not to stand shoulder to shoulder to defend his brother’s honor even without Tamerlan’s being on the way to jihadist ideology. This aspect of the crime has not (and understandably could not) been explored. It is apparent that if Dzhokhar might know anything about attempts to entrap Tamerlan, he cannot be left to live.

Sorry for the length of the comment and thanks again for your excellent article.

If I can be permitted a reply – as a guest here – I believe the defense did ask for the fingerprint analysis of the boat confession – and were denied the request by Judge O’toole. In fact, there was much that was denied the defense. As Heather has remarked elsewhere, we need to wait and hope for a new trial where new evidence may be introduced – and old evidence subjected to proper cross examination and scrutiny. One suspects that the defense is sitting on a great deal while looking towards the appeal process. They have taken the long view from day one.

Thank you for your kind words and sharp observations. You are right – I did not discuss Dzhokhar’s boat note for a number of reasons, but not because I don’t have a lot to say. Mainly my reason for omitting my analysis of it was time constraints. I was trying to get this post out in a timely fashion and was already nearing a staggering 8000 words. I’m impressed so many people made it to the end as it is!

That being said, I also deliberately chose not to include the boat statements in my summary of the radicalization trajectories for one reason: radicalization is a path people take before committing violent political action. The fact that Dzhokhar wrote those statements after the crimes had been committed already throws their accuracy into suspicion. Anyone can try to rationalize their actions after the fact and grasp for scraps of justification. Radicalization speaks to what motivates individuals and groups beforehand so that they are capable and willing to commit violence in the name of a cause. To me, his boat note always read like he was trying to retrofit noble reasoning – likely fed to him by Tamerlan – onto his involvement with something he’d probably already realized was a horrific mistake. It really struck me that no evidence of these type of statements emerged from him before the crime. And perhaps it can be argued that his involvement in the bombing did radicalize him to a certain degree, so that at that moment, while scared and wounded, he really did believe it. However, as the defense pointed out (far too late, in my opinion, unfortunately), although he did write that he was jealous Tamerlan had gotten to heaven before him, when transferred to the hospital, the only thing he asked the paramedic who treated him was, “Where’s my brother?” This suggests that, if he had ever believed his own words at all, only hours later he had already independently changed his mind. True radicalization is generally more difficult to counter than that. (Although certainly not impossible, as deradicalization programs introduced in other countries have a good success rate.)

As for the placement of the note, evidence photos show it was on the inside wall, low enough to the floor that someone in a prone position could have pulled his torso up or reached up with an arm to write. And I know the prosecution harped on the neatness of his handwriting, but I definitely noticed a lack of control of size and shape the longer he wrote – probably as he began to feel worse and worse. I agree that the defense could have brought handwriting experts to analyze it and was disappointed that they didn’t. Perhaps lack of time or money was a factor in this. I have been toying with the idea of writing another post that focuses on the boat note, since there really is enough there for me to discuss that would warrant an entire blog post… as the length of this comment probably already shows!

As for the manufacture of the bombs, it also struck me that there was not enough evidence to show that they had been made in the Tsarnaev residence. I don’t recall anyone testifying to the idea that they were unlikely to have only been made by one person, however. Regardless, I think it actually speaks volumes in Dzhokhar’s defense that the off-site location was never found, even after his hospital confession. This probably means that he never knew where it was and only found out about the bombs after they’d already been built. I can’t speak to the idea of any other co-conspirators, however – I simply don’t have enough information and such speculation can be dangerous.

I do like your analysis of Chechen identity and honor. The North Caucasus is a fascinating region and I’ve done some research into its cultural and political history, although not nearly as much as I would like. The defense did discuss a lot of such things in what was probably the most interesting part of the trial for me – and they certainly pointed out the hierarchical family structure and the expectation that the younger brother would have to listen to the elder. I also agree that just on a human level, especially if you’re young, you tend to want to support a loved one you admire, regardless of his own beliefs. I have a cousin who is the same number of years older than me as Tamerlan was from Dzhokhar. I recall being around 19 and agreeing with everything he said so that he would think I was cool and want to hang out with me. The need for approval in adolescent years is a stronger drive than I think a lot of people realize. Luckily, we only talked about indie music and not violent political ideology…

As for possible FBI recruitment for Tamerlan, again, I don’t have enough information to comment comfortably. I wouldn’t say it was out of the realm of possibility, but given Tamerlan’s unstable nature I’m simply not sure they would want someone like him. Not to mention the reports of their interviews with him seemed so dismissive and even negligent – that, for example, they would monitor him in case he made any foreign travel plans, and then clearly did no such thing because he was able to go to Dagestan unchecked. Whether that was human error in a system that already works so poorly or something more deliberate I simply don’t know.

Sorry for the length of MY comment! You brought up so many great points I wanted to be able to address them all. 🙂

You might find this of interest: Blog post from 17 year old Dzhokhar for a UMass Dartmouth summer reading course, commenting on the conviction in 1993 and eventual release in 2011 of the West Memphis Three. The WM3 were three teenage boys convicted of the murders of 3 eight year old boys in West Memphis, Arkansas. One boy was sentenced to death and the other two to life. They were released thru a plea bargain deal on the basis of new DNA evidence after 18 years incarceration, some few weeks before the scheduled death of the first boy.

Dzhokhar Tsarnaev
August 31, 2011 at 11:42 pm
In this case it would have been hard to protect or defend these young boys if the whole town exclaimed in happiness at the arrest. Also, to go against the authorities isn’t the easiest thing to do. Don’t get me wrong though, I am appalled at the situation but I think that the town was scared and desperate to blame someone. It’s because of stories like this and such occurrences that make a positive change in this world. I’m pretty sure there won’t be anymore similar tales like this. In any case, if they do, people won’t stand quiet, i hope.

Sorry for the delay in responding – I got bogged down by Memorial Day weekend travel. This is, in a word, remarkable. Thank you for sharing. At the very least, I take it as a sign that I have done the right thing in speaking out about this.

I was absolutely shocked when at the end of Part 3, you disregarded everything you had just told us explaining the reasons why it was impossible that Dzhokhar could have done what he was accused of and suddenly determined he actually committed the bombing. I was right with you up until that point and you had described the exact way I felt reading the Tweets that were coming across my computer screen during the trial.

Actually, he did deny being responsible for the crimes he was accused of. He plead Not Guilty and never changed that plea.

Maybe none of what the government claims ever happened. Maybe there were no bombs at all. Maybe the boys thought they were participating in the drill that was apparently going on simultaneously. Maybe no one was even injured, let alone killed at the marathon and maybe that was part of the training simulation. Maybe the government needed Chechen patsies for a political deal with Russia. Would it really be all that surprising for our government to sacrifice an innocent Chechen Muslim boy for what they might consider a “higher” purpose?

The slippery slope in this discussion begins with believing anything at all presented by the government — about Tamerlan’s so-called radicalization, about Dun Meng’s ever changing story, about Dzhokhar receiving a gun from the Silva boy, about “pressure cooker” bombs and backpacks. There are so many easily verifiable lies in their version of events that should have removed any shred of credibility. Unless you allow for the fact that this entire case was fabricated, you may never be able to find the truth, if that’s what you’re looking for. And if trials aren’t about finding truth, then a new system for doing so needs to be found.

Regardless of my criticisms, I really appreciate your sentiments and the fact that you wrote such a thoughtful and compassionate essay. I also appreciate your father’s insights. And I believe this paragraph from your essay describes the crux of the greater issues that need to be thoroughly discussed and resolved:

“And if the unfairness that happened at his trial could befall him, then it could happen to your friend, your nephew, your son. It could happen to me, and it could happen to you. Guilt or innocence doesn’t matter: everyone has the right to a fair trial in this country, and the right to have their punishment fit their crimes. The fact that Dzhokhar didn’t get one and wound up with a much harsher sentence than he deserves is such a blot on our character as a nation that I am embarrassed for us.”

I might just add that a death penalty (as long as it continues to be legal, which I hope is not long) should require an extremely high degree of certainty that goes even beyond a reasonable doubt. It should go much, much further than an opinion. Nothing even close to that was presented in this trial. I would also add that the media was probably at least 50% responsible for this verdict and sentence.

Sorry for the delay in approving your response. Between the amount of traffic my blog is getting currently and weekend travel, I got behind in moderating and responding to comments. Thank you for your compliments and your own point of view. I am glad we can find middle ground even though we don’t see eye-to-eye on all the issues. I appreciate being able to have a reasoned debate about this case – for far too long I was afraid to bring it up for fear of the angered responses I would get when I attempted to give Dzhokhar the benefit of the doubt.

From a legal standpoint, there are many reasons why a person would plead not guilty and never change his plea. Researching this case has taught me a lot about law, mostly thanks to my father, who has explained a variety of strategies. In this case, considering the death penalty never came off the table, this was likely a motivating factor for keeping with the not guilty plea. As my dad described it, the second you plead guilty, the government can do whatever they want with you. And if they never agreed to remove the possibility of the death sentence, there is no reason why someone should plead guilty – unless he wants to die. Despite lots of baseless speculation to the contrary, that Dzhokhar is a jihadist who would welcome the martyrdom status, I think it’s pretty clear he wants to stay alive. Also, if you consider the way plea bargains usually work – that if you admit guilt, you are able to secure yourself a lesser sentence than you would get if you stick with a not guilty plea and are convicted at trial – you can see why someone facing jail time might choose to plead guilty, even if he is completely innocent. I’m not saying specifically that Dzhokhar plead a certain way because he is innocent or because he’s guilty, just that, unfortunately, because of the way the American legal system works, the way a person pleads is often not indicative of whether or not he actually committed a crime. It’s all based on legal strategy.

As I’ve stated before, since I am not a forensics expert, I am unable to make a judgment call on the true strength of such evidence brought against Dzhokhar. For now I must take evidence of that nature presented at trial as fact, although if new evidence emerges I am open to changing my opinion. Based on what is currently known, I am forced to believe that Dzhokhar was involved in the bombing in some form. I cannot distrust my own senses – I have seen the damage done to the sites in person and heard testimony from victims. For me, the question is not so much “if” as “why,” which gets into such murky uncertain territory that I certainly wish I could fall more solidly on full guilt or full innocence. Unfortunately, given the evidence presented to me, I cannot.

That all being said, I think the issues you have raised still apply. It was harrowing to sit in a room as a jury of mostly older, mostly white people looked down angrily upon a young Muslim first-gen immigrant defendant. How can that ever be considered a jury of his peers? The idea of creating a political scapegoat is absolutely a relevant one, as well. Since 9/11 we have been on a witchhunt against terrorists, but the truth is that around here they are in short supply. This case has become an opportunity to conflate the threat of terrorism and keep people afraid, and the nuances of how and why Dzhokhar may have gotten involved with the plot have been lost. The attitude has become, “If you’re a terrorist, who cares about due process?” which is a supremely dangerous one to have. Because if we are in the business of ignoring facts, what happened to Dzhokhar truly can happen to anyone. Maybe he is not completely blameless – but if this is the way we operate, the there’s the likelihood that someone before him and after him in similar circumstances might be. That is simply not a possibility I can sit with comfortably.

Dear Heather,
Reading your article gave me hope that there are incredibly smart people who care for people in the world who make mistakes. Thank you a million times for your thought provoking words. The insight you gave about Jahar from seeing him in the courtroom was exactly what imagined it would be. He’s not a monster and he’s not a crazy terrorist. I never had that impression of him for some reason, maybe it was an intuitive response, I don’t know. The picture of Jahar from the day at the Marathon did not look like someone who was skilled and had bad intentions. I saw someone who was scared, not very present and going through the motions, maybe following along. He didn’t look like the same person from pictures of him with friends for sure. Who really knows if Jahar was actually scared to turn back and decided to go through with it because his brother laid it all out for him. Whatever the reason is he didn’t stop himself, we may never know.

I also do not feel he got a fair trial and you have laid out many of the reasons why. Thank you for your detailed point of view. You bring up so many points that are valid. I hope he does get a new trail and the appeals last long enough for this to be overturned. I don’t think the majority of the people out there feel good about the decision that was made to put a young person to death without taking any of the past history or mitigating factors into account. There were so many influences Jahar had to fight against and maybe he blindly gave in thinking for some reason in his young mind that listening to his brother would be wise. He wan’t thinking strait and was misguided down a dark path. Who’s to say it can’t happen to anyone’s kid. i don’t think it was months in planning for him either. It was more like weeks and between the emails and his brothers planning was Jahar out with his friends. There doesn’t seem to be enough said about the depth of Jahar’s planning. Everything shows his brothers involvement and interested in violence. There was constant conflict at home in Boston and Jahar didn’t have much of a chance unless he didn’t go home for the summers after school. He didn’t have his parents financial or emotional support to stay in school and the easier solution was to go home at summer break. it’s a tragedy to think if he stayed away from Tamerlan, he would have still been in school or at least living somewhere else. Jahar was in some aspects fighting against something much bigger than he was.

My hope is that you or someone like you who is creative and compassionate, can someday interview Jahar to find out why or at least give us some response. I have prayed for him like I pray for my own family. I believe he deserves a second chance at life, to repent and redeem himself. We all do. We are all deserving of a second chance.

Thank you so much for your amazing compliments. This gives me such hope that there are people of intellect and conscience who won’t stand for the injustice we see in the world. Really, thank you and thank you to everyone who has read and commented.

First, I wanted to address your point about Dzhokhar’s wounds that you mentioned in a previous comment. His defense team was not able to make any preliminary statements about the state of his health or his injuries before the trial got started. The jury was made aware of the fact that he was shot many times a few ways, however, first by viewing the boat in which he hid. They did take note of the bullet holes (I believe over 100 were counted) and were made aware of the fact that he was completely unarmed during that time via defense questioning of the witnesses. The defense also brought up the state of the SUV he escaped in (highly damaged from gunfire) and did point out he was lucky to be alive. To my knowledge, the extent of his injuries were only explored tangentially after that. I know the defense wanted to end their case in the guilt phase by showing photographs, but were blocked from doing so. I had read in news accounts since the time of his arrest that the defense had been granted permission by the court to have the Bureau of Prisons take photographs of his recovery, so I suspect the photos that were blocked may have been them. If this is the case, I do wish they could have been seen – I think it would have gone a long way to illustrate just how far he had to come in his own physical recovery and humanize him in a way that was sorely needed, given the biased jury. I too have always cringed at that photo of him with his hands cuffed behind his back, especially having read reports and seen footage of just how damaged his left arm had been. The pain must have been excrutiating. I also find it interesting that given the current national dialogue regarding police shootings and brutality, this case never comes up. Nor does the perhaps even more outrageous case of the FBI killing of Tamerlan’s friend Ibragim Todashev. It gives me the uncomfortable implication that even the outcry for fair treatment of suspects by authorities doesn’t apply to “terrorists” or their associates.

As for your comments about the case itself, I could not agree with you more. I think you are chipping away at the core of the issue: that there was an overwhelming sphere of influence that Dzhokhar must have been constantly resisting for the majority of his formative years. The fact that he kept away from it for so long (and actively kept his friends from it as well) is, to me, actually a testament to the strength of his character. And I often think, now that I have unraveled as many of the facts and mitigating circumstances as I can, that in order to have completely torn free of involvement, he would have had to be superhuman. The fact that a young person has been condemned to death for not being Superman is very troubling to me – especially since, perhaps, I have so many students of his general age and similar immigrant background. They are all doing the best they can, but oftentimes they need help. I consider it part of my job to give them that help in any way I can. I never met Dzhokhar in person until the day I first saw him in court, but he could have been one of my students and I cannot help but consider him as such. There is a stark difference between someone who is rotten to their marrow and someone who is in trouble – and he has always, since day one, been in the latter group for me. That in itself is enough for me to believe he has the possibility for redemption, as you said.

Thank you so much for saying that you hope I might be able to interview Dzhokhar one day. I have wished for the same thing – to at least establish some dialogue. Despite being very much alive and in front of so many eyes, he has been rendered strangely mute, and it frustrates me to no end. Obviously legal strategy is one consideration, but part of the nature of the beast that are the Special Administrative Measures is to silence anyone who has been placed under them. The concept that the ideas of SAMs inmates are just that dangerous because they can communicate with comrades via code or corrupt anyone with their radical ideas is reminiscent of the old school days of the Red scare. It was difficult for me not to roll my eyes while sitting through those particular arguments in the penalty phase. I heard a lot about the fear that while serving life in prison, Dzhokhar could write a book. (Not a book!) Considering I have been working on a fiction series for the better part of a decade that deals with just about all the issues brought up in this case, I’m not sure it’s him they have to be worried about writing a book. As a writer, I care deeply not only about truth and knowledge, but the chance to give a voice to the voiceless. I’m willing to take that chance, at least until – I hope – the unconstitutional SAMs are removed and Dzhokhar has the opportunity to speak for himself.

And, despite not having been a religious person for a decade, I admit that I pray for him, too. I’m glad that you do, as well. As I’ve said, he needs all the help he can get.

Thank you so much both for your new comments and for posting your dad’s legal perspective. This is the first part of a two-part response, focusing on what he mentions as one of the most hopeful avenues for saving Dzhokhar’s life: having the death penalty itself declared unconstitutional.

Back in 2012, I wrote an article (link below) on a ground for reaching this result under the Eighth Amendment prohibition against “cruel and unusual” punishments which ties in with an episode on the first day of Dzhokhar’s defense in the penalty phase, April 27 (Day 50 of the trial).

The defense, before its opening penalty argument by David Bruck, was asking Judge O’Toole for authorization to show the jury an aerial photograph of ADX Florence. This was at once to communicate how awesome a punishment LWOP is, especially for such a young defendant, and to give an idea of how secure this supermax prison is.

The prosecution objected, because it felt that the view of ADX Florence was relevant not to specific mitigation for Dzhokhar, but to “a question about, in general, whether we need the death penalty at all given the ability of the Bureau of Prisons to incapacitate people.” (Transcript, p. 50-24)

As it happens, that was a question that lots of philosophers, judges, and legislators were asking during the Founding Era in the U.S.A. (say 1776-1800), with a common answer being that only “absolute necessity” could justify the death penalty.

This may be one of the most hopeful legal arguments for Dzhokhar, interestingly based on applying 18th-century standards and values at the time the Eighth Amendment was ratified (1791) to our 21st-century world. Of course, as more and more States like Nebraska today (the 19th out of 50) abolish the death penalty, the Supreme Court may find it politically more tenable to look back some two centuries and move “back to the future.”

However, the issues of mitigation specific to his case are what I see as most relevant to this very impressive thread, and what I’ll focus on in my next comment, using your human insights on the real Dzhokhar Tsarnaev, and your dad’s legal outline, as a starting point.

You and me both. I felt very alone in this endeavor for so long, but now I feel less so. Strength in numbers for this sort of thing is essential, as is both logic and empathy. I am hopeful that if we put enough reasoned heads together, we can find a peaceful and compassionate solution to give Dzhokhar and others like him a chance for redemption, in whatever form it may be. Thank you again for adding to that dialogue.

First tychesd, thank you for that link to an article by David Dow, a truly courageous capital defense attorney, where I totally agree that death qualification resulted in an unrepresentative jury and a skewed penalty phase process ending in a death sentence for Dzhokhar Tsarnaev which reflected neither the powerful mitigating circumstances present nor the actual conscience of the community in Boston or Massachusetts.

However, I must respectfully and strongly differ with one of the author’s assertions: that people like Sister Helen Prejean and myself, who are committed against voting for the death penalty in any case, are somehow exceedingly rare in the U.S.A. My prediction is that lots of Bostonians would be excluded even under the original interpretation of Witherspoon v. Illinois (1968), which did in its time result in the reversal of a very large number of death sentences.

In fact, Amnesty International’s tally of “Abolitionist and Retentionist Countries” has for some time shown 97 or 98 countries — according to one webpage I saw, it may now be 99 — which are abolitionist for all crimes, including “extraordinary” national security or wartime offenses. Recent international tribunals on war crimes and genocide, as well as the International Criminal Court, have excluded the death penalty even for these offenses which often involve the planning and carrying out of mass murder, and by defendants far more mature and experienced than Dzhokhar!

Also, even in the business of choosing mass murderers, much of this can be in the eyes of the beholders — with political factors playing a central role, as also in the trial we are addressing here.

For example, Osama bin Laden might be responsible for several thousand lives, if we consider 9/11 and the other attacks al-Qaida has launched. However, the “death squad democracies” of El Salvador and Guatemala during the period of 1979-1989 likely are responsible for hundreds of thousands of deaths of innocents; but since these regimes were allies of the U.S.A., we rarely hear their leaders (official or behind the scenes) cited as examples of ultimate evil.

In Boston, it’s quite possible that going back to the original Witherspoon standard of 1968 that only jurors who make it “unmistakably clear” that they are committed to vote against the death penalty regardless of the evidence can be excluded for cause, plus abolishing preemptory challenges, might have helped. Since Wainwright v. Witt (1985), trial judges have had broad discretion to exclude any jurors whose scruples might “substantially impair” their ability to follow the law — with jurors who answer “I don’t know” or “I’m not sure that I could vote for death” as prime targets. And lots of jurors tend to be unsure: they would survive challenge for cause under Witherspoon, but not under Witt, unless the judge is inclined to err on the side of life.

But lots of jurors would still be excluded even under Witherspoon, as long as death qualification is permitted, even David Dow style. For example, any Catholic who adheres to current teachings of the Church, as interpreted by recent Popes from John Paul II to Francis I, will categorically reject the death penalty for any crime, no matter how evil, at least under modern conditions where the offender can be nonlethally restrained (which imprisonment in a maximum-security prison can certainly accomplish).

Above all, what death qualification does (however carried out) is to marginalize Sister Helen and others of us, including the United Nations (e.g. in General Assembly Resolution A/RES/62/149 for a global moratorium on executions, 18 December 2007), who are urging precisely that the death penalty is wrong in every case.

Omar Khdar documentary from CBC. Very relevant to the current discussion about Jahar: I’ve followed this case closely over the past ten years, since two of my students did a joint oral report on him for a Theory of Knowledge class. From the interrogation techniques to the questionable charges and the ambiguous evidence. What is most uplifting is the deep and gentle humanity he displays after his harrowing ordeal – now that we can finally encounter him without filters.

Heather,
Thank you for your interesting and well written article on Jahar Tsarnaev.

Thank you even more for being brave enough to write it.

It is much easier to hate and go along with the majority than have to think about what this young man will endure in prison and perhaps be stirred by an emotion of empathy that might bring ridicule if mentioned.

I think there is room in our hearts to feel for both the victims and Jahar.

Thank you for your kind words and encouragement. I really appreciate it. It has not been easy to hold this point of view, but after what I witnessed in the courtroom I knew I could no longer keep quiet.

I will certainly keep writing, and I am heartened that there are people like you out there reading.

For anyone here wishing to help Dzhokhar in a tangible way, here is a petition to the US Attorney General, asking for the SAM’s to be modified to allow Dzhokhar’s extended relatives to write, visit or to speak to him by phone. I think this would be a comfort and also give Dzhokhar more to do, more to look forward to. He does have other relatives in the US who would possibly visit him. We have also seen how much his relatives overseas love him, and he certainly loves them to. It’s nothing but vengeance and cruelty to keep a prisoner from those who love him. I think we all know that Dzhokhar is no threat to anyone. Please sign the petition and share it far and wide. It may just work.

I apologize for letting the blog go quiet for a few days, but I’m working in the background and planning new posts, so rest assured I will be back and writing more about this soon.

Unfortunately, at the moment I’m not sure there is anything that can be definitively done. I’ve learned a large part of dealing with the legal system is playing the waiting game. I do know Dzhokhar’s formal sentencing hearing will be June 24th, but I’ll be out of town then, so I can’t attend. (I’ll be visiting my parents and going over case-related stuff with Attorney Dad, who has been graciously taking my word on a lot of things for the last six months, since I haven’t been around to show him legal documents or exhibits.) I also read that the first appeal-related deadline is going to be September 30th, so there’s time between now and then to process what’s already happened and do some more research and writing.

For now, I think the best course of action for anyone who has been reading and wants to help is to follow this blog for new updates and to share it with anyone you think might want to lend their own perspective on the issue. Exposure, knowledge and intelligent dialogue goes a long way in a civilized society. Considering the sensitive nature of this case and the high stakes involved, that’s what is ultimately going to make a difference here. I think we’re off to a great start, but I welcome as many informed and reasoned voices as possible.

Also, I really appreciate the links to other articles and documentaries on similar issues that have been posted. If you or anyone continues to find relevant information of this kind, please do share it with me. I’ve done a lot of research myself, but I’m only one person and absolutely welcome anything another pair of eyes and a keen mind has uncovered. I think my next post might be a “roundup” of the discussions that were had in the comment section for this entry, and I plan to address the links presented by you, Richard and Margo then… and anything else that might come in of that nature between now and when I make that post. 🙂

Additionally, a few topics I plan to cover in the future include: the unconstitutionality of the Special Administrative Measures under which Dzhokhar has been placed, an in-depth analysis of the boat note and why I don’t consider it irrefutable proof of his radicalization, and the existence of anti-Muslim prejudice in the courtroom during the trial and how Dzhokhar’s religion was used against him unfairly. I’m not sure yet which order I’m going to write these in; I just wanted to give a shoutout about what’s on the docket for now.

Thanks again for your support and to everyone who has been reading and corresponding so intelligently. My gratitude knows no bounds.

Thank you for responding, Heather. What a relief! I get so upset when I read things about Jahar’s sentence. I read one today. Two articles by reputable individuals have now stated that they believe Jahar will be executed at some point. Both individuals are against the death penalty. There’s something about this story that arouses a strong emotional response in me. I don’t think I’m the only one who has reacted this way but I think it’s odd:) Oh well!

In my upset mood, I called the Death Penalty Information Center this morning to ask them what actions COULD be taken by the public in a case like this. She suggested I write a letter to President Obama asking for clemency. That was on my agenda. I also mentioned to her that I plan to write to Pope Francis. He has spoken out on the death penalty in the recent past, as well as have other recent Popes. And, he will be visiting the U.S. in September. He will be making an address to Congress, and I’m sure he will be talking with the President. In fact, if I could recommend anything for people to do at this time, it would be to write letters to President Obama and the Pope. I can provide addresses. I think it’s also good to write or call your Members of Congress. They may not be inclined to have any feelings of mercy for Jahar, as he’s a “terrorist” and all. But, they do listen to their constituents.

As I had mentioned the Pope, the lady at the Death Penalty Information Center also mentioned the Catholic Mobilizing Network, a group that does work on the death penalty. There is also the Quakers – or the Society of Friends, as they also are called. They are doing work on prison reform and punishment issues.

So, there is the morality angle and working with faith groups who are opposed to the death penalty. Most are also opposed to solitary confinement. And, I am glad you are pursuing the matter of anti-Muslim bias. That is definitely a factor here. Muslim groups don’t want to be in a position where they are defending “terrorists,” but I think they would want to call out anti-Muslim bias when they see it.

No worries! I’m sorry to have scared you. Trust me, I am not walking away from this. Also, I know what you mean. A lot of what is said in the press about this case can be upsetting or infuriating. However, I try to remember that most mainstream media outlets don’t know what they’re talking about. I’ve gotten to the point where I can identify and discard the inaccuracies or biases, especially once I started comparing my own courtroom experiences to what was making it to the news. When I feel overwhelmed, I try to remember that any commentary that Dzhokhar will or won’t be executed can only be speculation at this early stage. The appeals process is going to be lengthy and complicated, so there is certainly time to get organized, speak out, and make a difference in a reasoned and effective way.

Also, wow, this is great information, thank you! Yes, I agree the Catholic angle is a good one to go. I have been considering trying to contact Sister Helen Prejean or her organization. She is a fierce death penalty abolitionist and she is already involved in the case since she has counseled Dzhokhar. Also, living in Massachusetts, I know this case is obviously politically hotter than in other parts of the country, but senator Elizabeth Warren has said in the past she supported a life sentence for him rather than the death penalty. So, if there’s any MA people reading this, she might be a decent person to contact. It’s also on my list to see what the ACLU might have in the works in regards to this case, especially since right after the verdict spokespeople from their organization were already speaking out about the unfairness of the trial. And I need to look more into whether any Islamic societies are looking at the case, as well. I agree with you that they’re probably in between a rock and a hard place because Dzhokhar’s been convicted of terrorism charges, but I’m hoping that won’t scare off everyone.

More to come! This is all just thoughts coming off the top of my head.

Lindh’s lawyer, famed San Francisco criminal attorney, James Brosnahan, wisely took on the public’s perception of his client. That’s something that did not happen in Jahar’s case. He was tried in the court of public opinion way before his actual trial occurred. It should be noted that Brosnahan is expensive. And, Lindh’s parents were well-to-do. Justice is often different for people who have resources. I take nothing away from the skills of Judy Clarke and team.

Anyway, Lindh may or may not have been responsible for the deaths of Americans, as Jahar has. Lindh was initially charged with conspiracy to commit murder, but that charge was dropped. He is currently serving a 20-year sentence, and will be released in 2019.

But it is the issue of Lindh’s “radicalization.” I mean he was fighting against the United States in Afghanistan. He was very young at the time this was all going on. He had gone to Yemen before that. The guy was definitely not on our side. This is true of several of the people who are locked up right now on terrorism-related charges. They are true believers, committed to the cause of jihad. I truly do not think Jahar was committed to the cause – or, if so, it wasn’t for very long. Tamerlan was, and likely would have tried to join ISIS if it had been around at the time. The boat note made a major difference in this case because it established Jahar as a “real terrorist.” But I just don’t think that’s true.

What I found interesting is that similar comments were made about Lindh by George H.W. Bush as were made about the Tsarnaevs by Joe Biden.

Sorry for my absence, but I just wanted to drop a line to thank you for these links. This is another fascinating angle – and I really do think the key to establishing a fair and accurate defense for Dzhokhar lies in the analysis of what we understand about radicalization and identifying that he never exhibited any true signs of such, even considering the boat note. (But more on that to come.)

I’m currently compiling all the articles and videos that were linked in this comment section for a new post so I can discuss them and their relevance to Dzhokhar’s case at length. I hope to have that post up in the next few days. Thanks again!

Please forgive me for linking to yet another file with legal ideas, but this is my latest on the basic Eighth Amendment issue that your dad sees as very important. There is a bit near the beginning about an argument William Weinreb made during the lobby conference on April 27 (Day 50 of the trial) that in a way helps set the stage for the whole presentation.

Sister Helen Prejean might find this kind of argument interesting, and there is a note at the end about how current Catholic teachings on the death penalty are often similar both to the kind of 18th-century approach I’m documenting during the era that the Bill of Rights was adopted, and also to some more recent Eighth Amendment law.

It’s sort of a further development of my 2012 article linked to in an earlier comment, but hopefully a more current and stronger presentation.

Thank you again for all your efforts. And Richard Demma, if you’re still reading, my best to you in Bohemia, homeland of Jan Hus, with July 6 as the 600th anniversary of his martyrdom; and also the homeland of Peter Chelcicky, a great 15th-century advocate against the death penalty.

Thanks, Margo, and I certainly am reading with keen interest everything posted here, especially your and Heather’s remarks and all links. And, yes, the spirit of Jan Hus hovers over us all here in Prague, such a great and saintly man, steadfast in conscience in the face of a corrupt religious authority. And thanks for mentioning Peter Chelcicky – not so well known outside Bohemia!

Thanks again for your amazing input. I am in awe of your scholarly chops and find what you bring to the table so helpful – you’re really filling a gap in my knowledge that is proving to be invaluable. I will have a new post out soon addressing some of the issues you have raised in your wonderful, well-researched articles. 🙂

Thank you so much for this. I was hoping something like this would surface, and it’s going to be so useful to me as we go along. Thanks again for being such a great reader and an insightful and compassionate person. You’ve been so helpful to me and I’m infinitely grateful!

Here’s another ‘thank you’ from another Dzhokhar supporter. I just recently found your blog and after reading a few current posts decided to start reading the beginning. I made it through this entire article and almost all the comments. I’m looking forward to reading more of your insightful and sensitive posts. I sincerely hope we will witness a positive turn for Dzhokhar and if there’s anything I can do please count me in.

Thank you so much for taking the time to comment and for your kind words! I love hearing that I have reached new people. You can bet that I will keep everyone posted if there are new opportunities to help. For now, awareness, understanding and discussion are equally as important – nothing can be done about a problem if no one knows about it. Thank you for reading and engaging. It means the world to me.

More (much more, my research is piling up…) is on the way, so please stay tuned!